Zapex Corp.

ZAPEX CORPORATION Zapex Corporation and International Brotherhood of Electrical Workers, Local 2182, AFL-CIO

BDM Services Company; Zapex Corporation and International Brotherhood of Electrical Workers, Local 2182, AFL-CIO and William C. Rudd. Cases 32-CA-43 (formerly 20-CA-10477), 32- CA-46 (formerly 20-CA-10592), and 32-CA-51 (formerly 20-CA-10734) May 1, 1978

DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

JENKINS AND MURPHY On May 24, 1977, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondents filed cross-exceptions and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions of the Administrative Law Judge only to the extent consistent herewith and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge, for the reasons stated by him, that Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate economic strikers David Spear and William Rudd, Jr., when work for which each was qualified became available, after each had unconditionally requested reinstatement. Contrary to the Administrative Law Judge, how- ever, we find, for the reasons set forth below, that Respondents discriminated against economic strikers Russell Sharon, Craig Shields, Robert Salczynski, William Horrell, Clyde Varney, Clyde Hadveck, Robert Barela, Luther Briggs, G. Y. Mak, Boyd

I Respondent's request for oral argument is hereby denied as, in our opinion, the record in this case, including the exceptions and briefs, adequately presents the issues and positions of the parties.

2 we do not adopt the Administrative Law Judge's finding that Lambert, who the Union claimed was a striker, resigned on July 10. 1975, as such finding is not in our view supported by the record. In the absence of exceptions, we adopt the Administrative Law Judge's findings concerning Rouillard and Slauson.

3 All dates are 1975, unless otherwise specified.

4 Zapex Corporation and BDMSC, herein called Respondents, are wholly owned subsidiaries of BDM Corporation. As the Administrative Law Judge found, Respondents constitute a single integrated business enterprise with common ownership and common control being exercised over labor relations policy.

5 As set forth by the Administrative Law Judge at fn. 3: Lester, Lawrence Gibb, and Gerald Schmidt by failing to reinstate them immediately following their unconditional offers to return. The Combat Development Experimentation Com- mand (CDEC) is a component of the United States Army located at Fort Ord and Fort Hunter Liggett in Monterey County, California. Prior to July 1975,

CDEC utilized two private contractors, Bell Aero- space Corporation (Bell) and BDM Services Compa- ny (BDMSC), a subsidiary of BDM Corporation. Bell performed maintenance work for CDEC and

BDMSC provided CDEC with scientific and techni- cal support. In June 1975,3 BDMSC was awarded the contract to perform both the scientific and technical support work and the maintenance work then being performed by Bell. BDMSC subcontracted the main- tenance work to the Zapex Corporation, which was formed expressly for the purpose of performing the work formerly done by Bell.4 Because the Army desired to minimize disruption of programs already in progress, the contract provided for a "Phase-In, Phase-Out" (PIPO) program whereby it was agreed that certain systems would be taken over by Respon- dents on various dates. As scheduled, on July 1, Respondents began performance of the contract and Bell continued its performance on an interim basis under the PIPO plan. On July 7, the Union commenced an economic strike against Respondents. Employees of both Re- spondents and Bell participated in the strike.5 The absence of the striking employees resulted in delays in staffing, a disruption in the PIPO program, and a lack of maintenance service by Bell employees during the transition period. On July 24, Respon- dents received from the Army a "cure" letter regard- ing the "inadequate" level of support provided by Respondents. The letter set forth performance defi- ciencies, most of which related to areas of work which persons on strike had been assigned to perform. On August 8, Respondents replied, attribut- ing the "alleged deficiencies" to the strike and assuring the Army that Respondents would attempt Bell ard the Union were parties to a collective-bargaining agree- ment covering certain of the Bell employees, which agreement con- tained a union-security clause. Also pending before the Board was a petition filed by the Union in Case 20-RC-11950, wherein the Board, on June 30, issued a Decision and Direction of Election, reported at 218

NLRB 1191, in a unit of all senior engineers, senior associate engineers, engineers, associate engineers, senior scientific programmers, scientific programmers, system programmers, programmers, programmers ana- lysts, and associate programmers employed by BDM Services Compa- ny in its engineering department in and around Fort Ord, California, including Hunter Liggett Military Reservation, including group leaders, but excluding office clerical employees, guards, all other employees, and supervisors as defined in the Act. At the time of the strike, that election had not yet been held.

235 NLRB No. 165 1237

DECISIONS OF NATIONAL LABOR RELATIONS BOARD to hire competent personnel to perform work re- quired under the contract. 6 The strike ended on August 29, 1975, and between August 28 and September 3 all the above-named former strikers made unconditional offers to return to work.7 Re- spondents subsequently offered reinstatement to the strikers on various dates between October 9, 1975, and April 5, 1976. 8 In concluding that Respondents did not violate Section 8(a)(3) and (I) of the Act by failing and refusing to reinstate the striking employees upon their unconditional requests for reinstatement, the Administrative Law Judge apparently assumed that they had been permanently replaced and also con- cluded that they were timely offered reinstatement as positions became available for them. The General Counsel contends that the Administrative Law Judge did not specifically find that the striking employees were permanently replaced and, to the contrary, that he erred in failing to find that they were not permanently replaced. Specifically, the General Counsel asserts that the Administrative Law Judge misapplied the law in failing to place on Respondents the burden of proving that striking employees were permanently replaced or that Respondents' refusal to reinstate them was occasioned by other legitimate and substantial business justification; that, accord- ingly, the Administrative Law Judge erred by failing to find that Respondents had not met their burdens; that he erred in ignoring or giving insufficient weight to admissions by Respondents' agents to the effect that striker replacements were temporary replace- ments; and that he erred in failing to draw an adverse inference from Respondents' refusal to pro- duce subpenaed records concerning temporary strik- er replacements. Moreover, the General Counsel contends that the Administrative Law Judge erred by misconstruing or giving insufficient weight to affir- mative evidence that Respondents were actively recruiting new employees for jobs which former striking employees were qualified to perform, at a time when the former striking employees' applica- tions for reinstatement were outstanding. We find merit in the General Counsel's contentions and, for the reasons more fully detailed below, we conclude that Respondents violated Section 8(a)(3) and (1) by failing and refusing to reinstate the striking employ- ees upon their unconditional requests for reinstate- ment.

6 Shortly thereafter, Respondents' personnel needs additionally in- creased because the Army, by August 20, had substantially added to Respondents' workload for the I-year agreement. As discussed by the Administrative Law Judge, Respondents thus began discussions with CDEC in August, which subsequently resulted in a contract modification increas- ing Respondents' staffing by 19 persons.

I The dates of the former stinkers' unconditional offers to return to work were: August 28, 1975: Schmidt: August 29: Barela, Bnggs, Horrell, Lester, Certain principles governing the reinstatement rights of economic strikers are by now well settled. In N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967), the Supreme Court held that if, after conclusion of a strike, the employer "refuses to reinstate striking employees, the effect is to discour- age employees from exercising their rights to orga- nize and to strike guaranteed by [Sections] 7 and 13 of the Act .... Accordingly, unless the employer who refuses to reinstate strikers can show that his action was due to 'legitimate and substantial business justifications,' he is guilty of an unfair labor practice. The burden of prbvingjustification is on the employ- er." The Court in Fleetwood relied on its decision in N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967), where it held that "once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objec- tives since proof of motivation is most accessible to him." In reevaluating the rights of economic strikers in light of Fleetwood and Great Dane, the Board in The Laidlaw Corporation, 171 NLRB 1366, 1369 (1968), stated that: The underlying principle in both Fleetwood and Great Dane, supra, is that certain employer con- duct, standing alone, is so inherently destructive of employee rights that evidence of specific antiunion motivation is not needed.14 Specifically in Fleetwood, the Court found that hiring new employees in the face of outstanding applications for reinstatement from striking employees is presumptively a violation of the Act, irrespective of intent unless the employer sustains his burden by showing legitimate and substantial reasons for his failure to hire the strikers.

14 See also N.LR.B. v. Erie Resistor Corp., 373 U.S. 221 (1963). Even if a finding of antiunion motivation is necessary, the employer's preference for strangers over tested and competent employees is sufficient basis for inferring such motive, and we, in agreement with the Trial Examiner, would do so ifwe considered motive material. Here the General Counsel has met his burden by establishing that the alleged discriminatees were former striking employees who subsequently made unconditional offers to return to work, and that Respondents, by failing to reinstate such employees, "engaged in discriminatory conduct which could Salczynski, Shields. and Varney; September 2: Mak and Sharon; September 3: Gibb and Hadveck. Additionally, on September 3, the Union also made an unconditional offer to return on behalf of the strikers. s The mailing dates of Respondents' letters offering reinstatement were as follows: October 9, 1975: Barela and Hadveck; October 10: Varney; November 10: Mak; November 28: Lester; February 4, 1976: Bnggs; February 10: Gibb; February I1: Horrell; February 17: Salczynski; February 19: Shields; February 23: Sharon; April 5: Schmidt. 1238

ZAPEX CORPORATION have adversely affected employee rights to some extent." On the basis of the record before us, we conclude that Respondents have not met their burdens. Thus Respondents did not establish that striking employees had been permanently replaced or that Respondents' refusal to reinstate the strikers was motivated by other legitimate and substantial busi- ness justifications. The Administrative Law Judge did not find that Respondents had permanently replaced the strikers when they unconditionally sought to return to work. And, in our view, a preponderance of the record evidence would not support such a finding. 9 Rather, the record discloses that Respondents utilized temporary replacements. Captain Sam Slusser, the Army's contracting officer's representative, testified without contradiction that Dr. Daniel McDonald, Respondent's part-owner and chief executive, told him (Slusser) that the replace- ments were only temporary, and that the strikers would be returned to their positions at the end of the strike. In addition, various officials of Respondents, including Vice President Richard Cline, admitted that Respondents utilized temporary replacements, drawn from other facilities of Respondents.'o Nor is there evidence establishing that the temporary re- placements had themselves been replaced prior to the strikers' offers to return to work. Moreover, the General Counsel subpenaed, inter alia, the personnel files of Respondents' employees allegedly brought in to replace the strikers. The Administrative Law Judge properly denied Respon- dents' motion to revoke this subpena. Respondents, however, failed to fully comply with the subpena's terms. Thus, two of Respondents' witnesses, Donna Bakken, a secretary who prepared the files which were brought to the hearing, and Respondents' vice president, Richard Cline, admitted that the files of the temporary replacements were not produced as required by the subpena. Bakken testified that, while the temporary employees utilized were employed by Respondent BDM, only Zapex personnel files were produced. Thus, Respondents failed to produce the very documents relevant to their asserted defense. g Respondents contend that their personnel practices, including a "matrix" system of assigning employees to tasks as needed, make it "impossible" for them to come forward with a list of permanent replace- ments for the strikers. We find this reasoning unpersuasive. Neither the matrix system nor any other personnel practice relieves Respondents of their burden ofclearly establishing that the alleged discriminatees had been permanently replaced as of the dates of their unconditional offers to return to work.

10 In Respondents' August 8 letter to the Army, Vice President Hofer also stated that "BDM management personnel with special experience- have been assigned as acting project engineers. They are providing interim services .... "

11 Welcome-American Fertilizer Co., 169 NLRB 862, 870 (1968); Mallory Capacitor Company, A Division of P R. Mallory a Co., Inc., 169 NLRB 42 (1968). The Board11 and the courts2 have long observed the adverse inference rule, which one court at least has characterized as "more a product of common sense than of the common law."13 "Simply stated, the rule provides that when a party has relevant evidence within his control which he fails to produce, that failure gives rise to an adverse inference that the evidence is unfavorable to him."14 Accordingly, in considering Respondents' failure to produce the relevant personnel records (of striker replacements) subpenaed by the General Counsel, we infer that the records, if produced, would not have shown that the replacements were permanent. Our conclusion with regard to this issue is further supported by the testimony, noted above, that Respondents in fact utilized temporary replacements for striking employ- ees, and by Captain Slusser's testimony that he was informed by Respondents' chief executive that the replacements were only temporary and the strikers would be returned to their positions at the end of the strike. Finally, we note that after the striking employees unconditionally offered to return to work in late August, but before Respondents began offering reinstatement in October, Respondents actively re- cruited new employees for positions which former striking employees were qualified to fill. This recruit- ment campaign was reflected by newspaper adver- tisements. The Administrative Law Judge found that these advertisements did not reflect actual job openings, but were merely a part of Respondents' ongoing general recruitment campaign. We disagree for the following reasons. First, Respondents' general recruitment advertisements appeared in college and university newspapers, while the advertisements here in question appeared only in newspapers of general circulation. Second, unlike general recruitment ad- vertisements, these advertisements referred to "im- mediate" openings with the Zapex Corporation in south Monterey County where Fort Ord and Fort Hunter Liggett are located. (Respondents did not contend that they were performing services at any other facility in south Monterey at this time.) Third, there were pronounced differences in form and

12 Interstate Circuit Inc. v. U.S., 306 U.S. 208, 226 (1939). There the Supreme Court observed that, "The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse." Furthermore, the courts have consistently upheld the Board when it has drawn an adverse inference from the nonproduction of relevant evidence. See, e.g., N. LR.B. v. A. P. W. Products Co., 316 F.2d 899, 903-904 (C.A. 2, 1963); N.LR.B. v. Sam Wallick and Sam K. Schwalm, d/b/a Wallick and Schwalm Company, 198 F.2d 477, 483 (C.A. 3, 1952); N.LRB. v. Remington Ran4 Inc., 94 F.2d 862, 868 (C.A. 2, 1938), cert. denied 304 U.S. 576 (1938).

13 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. N.LR.B., 459 F.2d 1329, 1335 (C.A.D.C., 1972).

14 Id at 1336. 1239

DECISIONS OF NATIONAL LABOR RELATIONS BOARD content between the general recruitment advertise- ments and those announcing "immediate" openings. Finally, and most significantly, F. N. Hofer, a vice president of Respondents, testified that the "immedi- ate requirements" advertisements were billed to the Army as a cost of performance of their contract with the Army, and that billing these advertisements to the Army if Respondents did not intend to utilize the applicants for work under the contract would have been improper. Accordingly, we find that these advertisements evidence the availability of jobs which former striking employees were qualified to perform and Respondents' attempts to place new employees in these jobs at a time when striking employees' requests for reinstatements were out- standing. In summary, we find that the Administrative Law Judge: (I) erred in not placing upon Respondents their burden of proving that the strikers had been permanently replaced; (2) ignored, or gave insuffi- cient weight to, admissions in the record that Respondents utilized temporary replacements for the strikers; (3) improperly failed to draw an adverse inference from Respondents' failure to produce subpenaed records regarding striker replacements; and (4) analyzed incorrectly and gave insufficient weight to evidence that Respondents advertised immediate job openings in positions for which former strikers were qualified. In view of the above, we find the Administrative Law Judge's conclusion that Respondents did not discriminate against the 12 former strikers when Respondents failed to reinstate them reflects a misapplication of the law 15 and is not supported by the record. Accordingly, we conclude that Respondents have not established that their failure to reinstate the 12 former strikers when the latter made their uncondi- tional offers to return to work was justified by legitimate and substantial business justifications, and, therefore, that Respondents' failure to reinstate those strikers constituted unlawful discrimination under Section 8(a)(3) and (1) of the Act.16 We shall, therefore, order that Respondents make Russell Sharon, Craig Shields, Robert Salczynski, William Horrell, Clyde Varney, Clyde Hadveck, Robert Barela, Luther Briggs, G. Y. Mak, Boyd Lester, Lawrence Gibb, and Gerald Schmidt, as well as David Spear and William Rudd, Jr., whole for any 1s We are guided by the Court's ruling in N.L.R.B. v. Fleetwood Trailers, supra, in concluding that Respondents' failure to establish legitimate and substantial business justifications renders it unnecessary to consider evi- dence of union animus. For this reason the Administrative Law Judge's reliance on "the lack of probative evidence of union animus" is misplaced. i8 The General Counsel further contended that the former strikers were in any event qualified for, and should have been reinstated to, certain positions which became vacant via resignations and which Respondents filled with new hires. In view of our finding here that the 12 strikers were loss of earnings they may have suffered by reason of Respondents' failure to immediately reinstate them upon application. Furthermore, inasmuch as Re- spondents here have committed violations which go to the very heart of the Act, we shall further modify the recommended Order of the Administrative Law Judge to require that Respondents cease and desist from in any other manner infringing upon the rights guaranteed to employees by Section 7 of the Act.17

CONCLUSIONS OF LAW

1. Respondents are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. By failing and refusing to immediately rein- state economic strikers David Spear, William Rudd, Jr., Russell Sharon, Craig Shields, Robert Salczynski, William Horrell, Clyde Varney, Clyde Hadveck, Robert Barela, Luther Briggs, G. Y. Mak, Boyd Lester, Lawrence Gibb, and Gerald Schmidt upon their unconditional requests for reinstatement, there- by discouraging membership in the Union, Respon- dents have violated Section 8(a)(3) of the Act.

4. By the foregoing conduct Respondents inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act.

5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dents, BDM Services Company and Zapex Corpora- tion, Fort Ord and Fort Hunter Liggett, California, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified:

1. Substitute the following for paragraph l(b): "(b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act." unlawfully denied immediate reinstatement upon their unconditional offers to return to work, we find it unnecessary to pass upon these contentions of the General Counsel. We similarly find it unnecessary to pass upon exceptions to the Administrative Law Judge's interpretation or application of New Era Electric Cooperative, Inc., 217 NLRB 477 (1975).

17 See N. LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); Electrical Fittings Corporation, a subsidiary of l-T-E Imperial Corporation,

216 NLRB 1076 (1975). 1240

ZAPEX CORPORATION

2. Substitute the following for paragraph 2(a): "(a) Make David Spear, William Rudd, Jr., Russell Sharon, Craig Shields, Robert Salczynski, William Horrell, Clyde Varney, Clyde Hadveck, Robert Barela, Luther Briggs, G. Y. Mak, Boyd Lester, Lawrence Gibb, and Gerald Schmidt whole for any loss of earnings they may have suffered by reason of Respondents' failure to immediately reinstate them upon application. Loss of earnings, as referred to above, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest as provided in Florida Steel Corporation,

231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)."

3. Substitute the attached notice for that of the Administrative Law Judge.

APPENDIX NOTICE To EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

WE WILL NOT fail or refuse to reinstate econom- ic strikers who have unconditionally requested reinstatement when work for which they are qualified becomes available.

WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act.

WE WILL make David Spear, William Rudd, Jr., Russell Sharon, Craig Shields, Robert Sal- czynski, William Horrell, Clyde Varney, Clyde Hadveck, Robert Barela, Luther Briggs, G. Y. Mak, Boyd Lester, Lawrence Gibb, and Gerald Schmidt whole for any loss of earnings they may have suffered because of our discrimination against them by payment to each of them a sum of money equal to that which they normally would have earned until the dates on which we made a valid offer of reinstatement, with interest.

BDM SERVICES COMPANY

ZAPEX CORPORATION

DECISION STATEMENT OF THE CASE

JAMES S. JENSON, Administrative Law Judge: These cases were heard before me in Monterey and Fort Ord, Califor- nia, on various dates between April 13 and June 25, 1976. The consolidated complaint, subsequently amended, was

I Respondents contend that their operations are so "intimately related" with the United States Army that they share the Army's statutory exemption issued on January 26, 1976, pursuant to charges initially filed in the three cases on August I, September 9, and October 21, 1975. The consolidated complaint, as amend- ed, alleges Respondents threatened to withdraw a job offer if a prospective employee honored the Union's picket line; interrogated a prospective employee regarding his support for the Union; refused to hire a job applicant because of his activities on behalf of the Union or because of other protected concerted activities; and refused to reinstate 15 employees because they had participated in an economic strike against Respondents. Respondents contend that the Board's Decision reported at 218 NLRB 1191, wherein the Board asserted jurisdiction over the operations of BDM Services Company, was wrongly decided and, in addition to contending the Board lacks jurisdiction over their operations, Respondents deny the commission of the alleged unfair labor practices. All parties were afforded full opportunity to appear, to introduce evidence, and to examine and cross-examine witnesses. Extensive briefs were filed by the General Counsel and Respondents and have been carefully considered. Upon the entire record in the cases, and from my observation of the demeanor of the witnesses, and having considered the posthearing briefs, I make the following:

FINDINGS OF FACT I. JURISDICTION The complaint, as amended, alleges and Respondents admit that BDM Corporation, a Delaware corporation with its principal office located in Vienna, Virginia, is engaged in the business of providing scientific and engi- neering support to the United States Army and other Government agencies. Zapex Corporation and BDM Ser- vices Company, herein called Respondents, are wholly owned subsidiaries of BDM Corporation, and are engaged in the business of providing engineering support and instrumentation maintenance, and scientific engineering and experimentation support, respectively, to the United States Army. Respondents constitute a single integrated business enterprise with common ownership, and common control being exercised over labor relations policy. During the most recent calendar year, each Respondent provided services in excess of $500,000 to the United States Army and other Government agencies. In light of the foregoing and the Board's Decision in BDM Services Company, supra, issued June 30, 1975, wherein jurisdiction was asserted over

BDM Services Company, it is found that each of the Respondents is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act.' II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local 2182, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. under Sec. 2(2) of the Act. That issue was considered and rejected by the Board in the BDM Services Company case. I am bound by that Decision. 1241

DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1ll. THE ISSUES I. Whether, on or about July 14, 1975,2 Respondents threatened to withdraw a job offer from Russell L. Sharon if he honored the Union's picket line.

2. Whether, on or about July 28, Respondents interro- gated Vernon H. Rouillard, a prospective employee, regarding his support for the Union, and refused to hire him because of his past activities on behalf of the Union.

3. Whether, since on or about September 2, the Re- spondents refused to reinstate 15 strikers because of their support for the Union, or because of other protected concerted activities. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting For a number of years BDM Services Company has been engaged in providing scientific and technical support for the Combat Development Experimentation Command, herein called CDEC, a component of the United States Army, at Fort Ord and Fort Hunter Liggett, California. Prior to July 1975 Bell Aerospace Corporation, herein called Bell, performed the maintenance work associated with the experimentation conducted by CDEC. In late 1974, the Army distributed a Request For Proposal (RFP) among several contractors, including BDM Services Com- pany, and, in June, BDM Services Company was awarded the contract to perform both the scientific and technical support work which it had formerly done, and the maintenance work associated with experimentation then being performed by Bell. Performance under the new contract was to commence on July I and was for a i-year term with renewal provisions. BDM Services Company subcontracted the maintenance work to Zapex Corpora- tion, which was formed expressly for the purpose of performing the work formerly done by Bell. The agreement between BDM Services Company and the Army provided that the contractor provide, "on an as needed basis," all manner of scientific and technical abilities inherent in the contractors' organization. In the operation of the Scientific Support Laboratory (SSL), the contractor was required to furnish a minimum of 180 direct labor manyears (2,160 manmonths), and 16 manyears (192 manmonths) of indi- rect labor. Respondents agreed to have 203 employees available if needed for performance of the contract. It does not appear, however, that Respondents were required to maintain a definitive number of employees at all times. The contract specified $2,978,763 as the maximum total cost which could be expended in the performance of the contract, and that the contractor was to receive a base fee of 1.6 percent or $47,113, together with an award fee based

2 All dates herein are in 1975 unless otherwise stated.

3 Bell and the Union were parties to a collective-bargaining agreement covering certain of the Bell employees, which agreement contained a union- security clause. Also pending before the Board was a petition filed by the Union in Case 20-RC-1 1950, wherein the Board, on June 30, issued a Decision and Direction of Election, reported at 218 NLRB 1191, in a unit of all senior engineers, senior associate engineers, engineers, associate engi- neers, senior scientific programmers, scientific programmers, system pro- grammers, programmers, programmers analysts, and associate programmers employed by BDM Services Company in its engineering department in and around Fort Ord, California, including Hunter Liggett Military Reservation. on quarterly evaluations of the contractor's performance by a CDEC Performance Evaluation Board (PEB). The

PEB awards the contractor a score based on performance within the previous contract quarter, which determines the portion of the award fee for that quarter. The total maximum award fee was limited to 7.6 percent, or $223,787. In addition to assuming all maintenance functions formerly performed by Bell employees, Zapex assumed many of the engineering functions performed by BDM Services Company under the earlier contract. Approxi- mately 120 of the 180 direct manyears provided for in the contract were allocated to Zapex for operation of the Instrumentation Support Department (ISD). Respondents were scheduled to commence performance under the contract on July I and, as the Army desired to minimize disruption in the programs already in progress, the contract provided for a Phase-In, Phase-Out (PIPO) program whereby Respondents would be staffed 50 percent on July 1, 85 percent by July 15, and 100 percent by July 30. To accomplish this, it was agreed that certain systems would be taken over by Respondents on various dates. As scheduled, Respondents commenced performance of the contract on July 1. On July 7, the Union commenced an economic strike against Respondents. Both Respon- dents' employees and those employed by Bell participated in the strike.3 Initially approximately 25 individuals em- ployed by Respondents, and approximately 50 employed by Bell, participated in the strike. During the second week of the strike approximately 34 of Respondents' employees participated, including approximately 21 engineers and associate engineers and 13 maintenance personnel. While Respondents thought at first that the strike would be of short duration, 5 engineers and 12 technicians were transferred from other BDM offices within a week of the commencement of the strike, some permanently and others for 2- to 3-week periods until permanent replacement personnel arrived. In addition, a special staff was organized by the manager of corporate services who was transferred from Virginia to Fort Ord for the purpose of hiring replacement personnel. The absence of the Bell striking employees resulted not only in delays in staffing by Respondents, but also a disruption in the PIPO program and a lack of maintenance services by Bell employees during the transition period. Consequently, Respondents were required to assume maintenance functions over equipment with which they were not familiar. One such item of equipment was the GE 605 computer, which appears to have been a unique piece of equipment which was vital to the operation of certain CDEC experiments. 4 On July 24 the contracting officer for the Sacramento Army Procurement Depot (SAAD) wrote BDM Services including group leaders, but excluding office clerical employees, guards, all other employees, and supervisors as defined in the Act. At the time of the strike, that election had not yet been held.

I Before, during, and following the strike, Respondents engaged in an extensive advertising campaign for employees in numerous engineering, craft, and technical catagonries, stating in some of the ads that there were immediate openings. The vice president of management sciences and administration, F. N. Hofer, testified that, with the commencement of the strike, Respondents embarked on a campaign to replace the strikers, which included advertising which was handled by a firm located in Washington, D.C. He further testified that sales have increased from 20 to 30 percent per 1242

ZAPEX CORPORATION Company a "cure" letter regarding the "inadequate" level of support provided by the Respondents under the con- tract.5 On August 8, Hofer responded to the "cure" letter, attributing the "alleged deficiencies" to the "strike being conducted against us by the International Brotherhood of Electrical Workers, (IBEW) and other factors which are not under our control. Therefore, under the specific terms of the contract, we cannot be held to be in default ... ." The letter outlines the strike activities, the legal steps taken by Respondents as a result of the strike, the difficulty in recruiting replacements, and the disruption in the PIPO program due to the absence of striking Bell employees, and recites that full staffing would be accomplished by August 22. By letter dated October 16, the contracting officer advised BDM Services Company that "it has been deter- mined that BDMSC has an excusable delay in performance from 7 July 1975 through 29 August 1975," the date the strike ended. 6 The record shows that, at the time BDM Services Company made its proposal resulting in the award of the contract, it was contemplated that the Army would perform two major and four minor experiments. However, by mid-August, approximately eight experiments were listed in CDEC's experimentation schedule, at least three of which were considered major experiments, and word had been received that a ninth experiment was in the offing. Having become concerned with the increase in "tasking" which the Army was asking, and faced with the cost limitations in section 7-203.3(b) of the ASPR, Respon- dents concluded that, despite the fact they were overstaffed in certain areas, a potentially serious personnel shortage existed. Accordingly, in August Respondents entered into discussions with CDEC regarding projections and the necessity of increasing the size of the work force.7 On December 18, Respondents presented a plan to CDEC's Commanding General requesting authorization for addi- tional resources. Toward the end of the month, pursuant to a CDEC request, BDM Services Company submitted a technical and cost proposal to the contracting officer, proposing an increased staffing of 19 positions for the remainder of the contract period. On February 1, 1976, the contract was modified by increasing Respondents' staffing size by 19 at a total increase in cost of $150,000.8 Immediately thereafter, Respondents surveyed their manpower needs and hired additional personnel, including all but one of the strikers who had not yet been reinstated. year over the last 4 or 5 years, and the parent company writes from 20 to 30 job proposals per month. To meet the manpower needs that may result from new contracts, a continuing recruiting campaign is carried on which includes interviewing new graduates from universities across the country, and advertisements in local newspapers and trade and professional journals. He testified that, without a reservoir of resumes, the Company would be unable to meet manpower demands in a hurry in the event of a new contract. Associate Administrative Manager Phillips testified that from September 1 through January 1, 1976, Zapex received in excess of 650 resumes, over 500 from engineers and electronics technicians. While the placement of the ads may be one factor to consider in determining whether or not job openings exist, better proof lies in the records which reflect the actual openings and hires. Upon the evidence which follows, I am convinced the ads do not in fact reflect actual job openings, but were made in the course of an extensive advertising campaign for the purposes set forth immediately above. s Armed Services Procurement Regulations (ASPR 7 203.10) provide for the termination of contracts by the Government "whenever the contractor B. Alleged Threat To Withdraw Job Offer if Russell Sharon Honored Picket Line Paragraph VII(A) of the consolidated complaint alleges in substance that, on or about July 14, Roger Dupere, Respondents' range maintenance coordinator and an ad- mitted agent and supervisor, threatened to withdraw a job offer if Russell Sharon honored the Union's picket line. Sharon was employed by Bell as an electronic technician from July 1972 until noon on July 14, 1975. The last 5 months of employment with Bell were as range measuring system (RMS) supervisor. In the latter part of June, Sharon filled out an application for employment with Zapex, and gave that and a copy of his resume to Range Maintenance Coordinator Dupere9 during an interview lasting approxi- mately 5 minutes. Two or three days later, Sharon received a job offer as an electronic technician with Zapex at $4.94 per hour, commencing July 14. While he accepted the job, he apparently expressed some dissatisfaction with the wages. On July 13, Dupere called Sharon and offered him a job as an associate engineer at $1,100 per month commenc- ing the following day. Sharon accepted the offer. Sharon testified that, during the morning on July 14, he talked to Jerry Littou, Respondents' manager of planning, control, and administration, and asked if he could get the job offer changed to another month because his "boss" at Bell had asked if he would work until the end of the month. Littou's response, according to Sharon, was that he wanted Sharon to start work that day. Sharon then testified that about noon he talked to Ron Feliciano, a Zapex employee, "and told him I was going to leave and he told me not to talk to him, to talk to Dupere, which I did." His account of the conversation with Dupere, with Feliciano standing about 2 or 3 feet away, was "I just told Mr. Dupere that I was unemployed . . . [and] he told me that if I left he would rescind my offer of employment." He testified the conver- sation took place at the back door of the maintenance room at Hunter Liggett. In an investigatory affidavit given an agent of the Board on September 18, Sharon stated,

I spoke with Roger Dupere in my work area. I spoke to him in the presence of Ron Feliciano, an employee of Zapex. They were just walking by near where I worked and I walked up to them at about I p.m. and told them

I was going to honor the picket line. Dupere said if I did he would rescind his offer. I said I still would honor shall default in performance of [the] contract in accordance with its terms ... and shall fail to cure such default within a period of 10 days (or such longer periods as the contracting officer may allow) after receipt from the contracting officer of a notice specifying default."

6 Par. VI of the consolidated complaint alleges, and Respondents admit. that between on or about July 7 and August 29 certain employees of Respondents engaged in an economic strike. The record shows that a number of the alleged discriminatees made individual offers to return to work within a few days following the end of the strike, and on September 3 the Union made an unconditional offer to return on behalf of all alleged discrinminatees except Rouillard.

7 Authority to increase the estimated cost of the contract rested solely with the contracting officer at the Sacramento Army Procurement Depot.

8 Stalling level was increased in the following personnel catagories: engineering from 34 to 45; maintenance from 62 to 67; technical services from 13 to 16.

9 It was admitted that Dupere was a supervisor and agent of Respon- dents. 1243

DECISIONS OF NATIONAL LABOR RELATIONS BOARD the picket line. That's about all that was said and they walked away. Dupere, who no longer works for or is associated with Respondents, denied that he told Sharon if he honored the picket line or went on strike that he would rescind the job offer. He testified that on July 14 he talked to Sharon several times, the first at or about 7:30 a.m. when he asked Sharon if he was ready to come to work for Zapex. Sharon's response was in the negative, that he wanted to talk to Warren Hurst, his supervisor at Bell, first. About midmorning, according to Dupere, he saw Sharon again and asked if he was ready to come to work. Sharon again replied in the negative, that he still had not seen Hurst. About noon, Feliciano told Dupere that Sharon wanted to talk to him. Dupere's account of the conversation was, "So

I went over to the IMO building and asked Russ what he wanted. And he told me . . . that he wouldn't come to work for us. And he made a statement that those were his friends out there on the picket line and he couldn't cross the picket line. I told him I understood, I appreciated his position. And we terminated the conversation." Feliciano denied Dupere told Sharon that any job offer would be revoked or withdrawn if Sharon honored the picket line or went on strike or that he was present when the picket line was discussed. On the basis of the foregoing testimony, and my evaluation of the witnesses as they testified, I conclude and find that Dupere did not, as alleged, threaten to withdraw the job offer if Sharon honored the picket line. Sharon's testimony on the witness stand seems improbable - "I just told Mr. Dupere that I was unemployed. . . [and] he told me that if I left he would rescind my offer of employment." In both his testimony and his investigatory affidavit he made the point that Feliciano was present during the conversation, yet Feliciano failed to corroborate his testi- mony. Further, Dupere no longer works for the Respon- dents and impressed me as an unbiased and neutral witness. Accordingly, I credit his testimony and find that the General Counsel has failed to prove by a preponder- ance of the evidence the allegation contained in paragraph VII(A) of the consolidated complaint. C. Alleged Interrogation and Refusal To Hire Vernon H. Rouillard Paragraph VII(B) alleges, in substance, that, on or about July 28, Dupere interrogated Vernon H. Rouillard regard- ing his support for the Union. Paragraph VIII alleges that on the same date the Respondents refused to hire Rouillard because of his activities on behalf of the Union, or because of other protected concerted activities. Rouillard was employed by Bell (and before that by Philco-Ford) as a senior digital technician from 1972 until January 1975 when he quit because his work interfered l0 In an investigatory affidavit given an agent of the Board, Rouillard stated he stayed on as the Union's vice p;esident until mid-May 1975, when it interfered with school.

II Littou denies he called Rouillard in July or any other time. According to him, the first time he ever talked to Rouillard was in person in April 1976 when Rouillard brought him an updated resume. Apparently someone from Littou's office called Rouillard on July 24 and arranged the July 25 interview with Dupere. On cross-examination Rouillard stated the individu- with his studies at Cuesta College in San Luis Obispo. His supervisor at Bell was Russell Sharon. He testified that while working for Bell he served as the union chief steward from 1973 until November 1974, had been on the Union's executive board in 1973, and was the Union's vice president from June 1974 until January 1975 when he quit his job.t' Sometime in July, at the end of the school semester, Rouillard noted a Zapex newspaper ad for a digital technician on the bulletin board located in the college job placement center. As suggested in the ad, he sent a copy of his resume to Littou. He testified that on July 24 he received a phone call from Littou who purportedly stated "that I had all the qualifications and he would like to have me aboard . . . he would set up an appointment for me to speak with Mr. Dupere at Hunter Liggett on the 25th of July." 1 On July 25, Rouillard reported to the interview trailer at Hunter Liggett and was taken to Dupere's office. He testified that during the interview he told Dupere that he had earned $5.82 per hour at Bell as a senior technician, and that Dupere responded that Zapex paid their highest technicians $4.50 per hour. "Then he went into the benefit program with me explaining about how extra money was being given for transportation. Then I dropped my demand down to $5.65 per hour."' 2 According to Rouillard, Dupere then returned his job application form and asked that he complete it again and list BDM personnel as references in place of Bell personnel.13 Rouillard's testimo- ny as to what transpired next is: then he said to me about that time that he had to go somewhere and he went between the wall lockers heading towards where Mr. Hurst's office was who was the project manager at that time for Bell Aerospace. At that time Feliciano was coming through the opposite direction between the wall lockers and he spotted me. . . . he made a joking remark, "Hi, Vern, how is the vice president doing?" I said, "Well, I am not vice president no more." He said, "You were a good one and a good chief steward." About that time Mr. Dupere seemed to come to a screeching stop and turned and looked at me. .... He came to a stop, turned around, and looked at me and turned around to head off to Mr. Hurst's office. .... He came back from the office and he said that he wanted me back Monday, that he had to check with Fort Ord about my wages and to finish filling out this application. I asked him if I could use Feliciano's name on that application since I used to work with him quite regularly. He said, yes. I also named two other people whose names I forget at this time. I was to return Monday morning but I explained to him that I had to turn in some chemical supplies I checked out at Cuesta and Monday morning was my al with whom he spoke stated, "That I had the qualifications for setting up an appointment for me to meet with Mr. Dupere."

12 On cross-examination he testified he told Dupere he could not accept less than $5.65 per hour.

13 It appears Bell had a policy of refusing to give references for their employees. While working for Bell, Rouillard also worked with BDM employees. 1244

ZAPEX CORPORATION turn to turn my supplies in. We set up another time at noon on Monday, the [28 ] of July, to return." 14 Rouillard testified that, on the following Monday (July 28), he returned to Hunter Liggett and gave Dupere his application for employment; at Dupere's invitation he followed him into his office. He further testified: He [Dupere] didn't say anything there for about 5 or 10 minutes, it seemed like a long time. Then he looked up at me and said, "I want to talk to you outside of the trailer." ... we went outside the trailer on the platform ... he told me that every time he talked to Bell Aerospace people they would show up for work, turn around, and go on the strike line. .... I told him that I was not in the Union at that time and the strike could not affect me in any way and that I was here in true, honest faith looking for work, ready to go to work, if we could come to an agreement on wages. Then the conversation got kind of real touchy in that area ... Further he went into - he finally told me that I could go ahead and join the people on the strike line at this time. He says he has no job for me and I am not qualified.... He was mentioning about different people coming to work for 1 day and then turning around and going out on the strike line and that the rest of the - he said something about "tell the BDM people out there they will never be hired by this company" . . . he was getting kind of irrational at that time and I just kind of walked off and left. Asked at this point by the General Counsel whether Dupere had mentioned anything about Rouillard's prior union office, Rouillard added: Mr. Dupere wanted to know was I actually a vice president of the local union and I said I was at one time. I explained to him my different offices I had and assured him I was now resigned from the Union, that I was not a member at that time . ... [Dupere said] just

14 In his investigatory affidavit, Rouillard stated that Dupere made him a job offer of S4.50 per hour, after which he lowered his requirement from $5.82 to $5.65. After making arrangements to meet him again the afternoon of July 28: At that point, [Feliciano] walked in the office land said: "Hey Vern, you still vice president of the Union?" I told him I had resigned. [Feliciano I then said I was the best chief steward out here. Dupere did not say anything and I left. Thus, it is seen that Rouillard's testimony and affidavit differ in that the affidavit refers to a job offer having been made at $4.50 per hour, while his testimony was to the effect that Dupere stated Zapex paid their highest technicians $4.50 per hour. Further, in the affidavit the purported remarks by Feliciano regarding his having been vice president of the Union and chief steward came at the end of the interview as he was leaving, whereas he testified at the hearing that they were made during a break in the interview when Dupere had to leave, at which time Feliciano appeared. As will be seen hereafter, Feliciano denied making the remarks, and his denial is corroborated by Dupere. For reasons appearing hereafter, I credit Feliciano and Dupere.

15 The account of the July 28 meeting, as related in the investigatory affidavit, recites that, after giving Dupere the job application, Dupere looked it over and: to go out and join the strike line and tell those people they ain't going to work here anymore. He contends he went back around Thanksgiving and again in December and told Dupere he was still looking for work, and in March 1976 he gave Littou an updated resume and stated he was still looking for work. 15 Dupere testified that on July 25 he was introduced to Rouillard in the administration trailer, given a copy of his resume, and told that he was there for an interview. Feliciano entered, greeted Rouillard, and asked how he was; Rouillard responded he was fine. Feliciano told Dupere he was needed in IMO (Instrumentation Mainte- nance Organization) because of a problem. He testified he had not expected Rouillard and was fairly busy, and asked Rouillard if he would mind conducting the interview "sort of on the run." Dupere asked questions of Rouillard on the way to IMO, where he had an office. They continued the interview in the office until Dupere was called away briefly, at which time he saw Feliciano whom he asked to talk to Rouillard while he was away. He denied that when Feliciano entered that he mentioned anything about Rouillard's having been a vice president of the Union or chief steward. After returning, Feliciano left and Dupere resumed the interview. He testified he asked Rouillard about his technical background, told him the Company was having computer problems, and asked about his computer experience and RMS (Range Measuring System) experience. Dupere testified that Rouillard brought up the fact that he had been a union member, but that he had nothing to do with the people on the picket line and was no longer a member of the Union. Dupere responded that he was not interested in his union affiliation and it had nothing to do with the interview. He then asked Rouillard the position he was interested in and his salary expectation, and was told Rouillard wanted to be the leadman for the

RMS section, and what wage he would accept.'6 When asked if he would accept another position and a lesser salary, Rouillard replied in the negative. At the end of the interview Dupere took Rouillard to the administration trailor and told him to fill out an application for employ- He then said he could offer me $5.10 per hour. I told him I couldn't accept less than $5.65. At that point he became upset, or seemed so, and asked me to step outside the trailer. He told me that Zapex had offered jobs to several former Bell employees, that most of them . . . would accept but . . . not report to work, instead they would go out on the picket line. He asked if I would do the same thing. I said if given a job at the rate I said I would accept ($5.65 per hour) that I would report to work. I told him I had resigned my vice-presidency in the Union. He then told me I was too dangerous to have around, that I would probably turn the shop into a union shop, and that I may as well join the rest of the union members on the picket line... because I didn't meet compan. requirements. He added that he would not hire any former Bell employees that were union members and that the BDM employees on the strike line would never work for Zapex. Thus, while his hearing testimony denies there was any conversation between them in the trailer, his affidavit states that Dupere offered him a job at $5.10 per hour, which was declined since he could not accept less than $5.65. Further, while he testified at the hearing, after prodding by the General Counsel, that Dupere asked him if he was actually a vice president of the Union, it appears from his affidavit that, in an effort to persuade Dupere to offer him $5.65 per hour, he volunteered the information that he had resigned his vice presidency from the Union. is Rouillard testified he first asked for $5.82 and then lowered it to $5.65 per hour. 1245

DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. Rouillard asked, and was told that Feliciano would be a good reference. Dupere told him to bring the application in the following Monday, which Rouillard stated he couldn't do because of a prior commitment, so was told to mail it in. Feliciano testified he had known Rouillard when they both worked for Bell, and upon seeing him again asked what he had been doing since he had left Bell. The reply was that Rouillard had been going to school. Feliciano testified, in confirmation of Dupere, that he was delivering a message to Dupere regarding a problem in the IMO area. He not only denied he asked Rouillard how the vice president was doing, but also that he even knew Rouillard had been a union vice president. While he knew Rouillard had been the chief steward at Bell, he denied having made any remark about it.'7 Feliciano testified that he and Dupere had discussed Rouillard's qualifications but, since he had never worked with Rouillard, he was unable to give Dupere any information. s8 Dupere testified that on July 28 he ran into Rouillard outside the administration trailer and, while he had not expected to see him, the two went inside the trailer where Dupere looked over the job application which Rouillard had brought in. The only conversation, he testified, related to when Rouillard might expect an offer. He explained that he was not the one who made the decision, but that Rouillard's resume was in the "pipeline" and that he would hear from the Company one way or the other within a week. Testifying that he and Rouillard were the only ones in the trailer, he denied telling Rouillard he wanted to talk to him outside. He testified that since he had not expected Rouillard to show up that day, he had work to do and was therefore anxious to get rid of him. He denied the statements attributed by Rouillard, that Bell employees would show up for work and then go out on strike; that Rouillard could go join the strikers; that Rouillard should tell the BDM strikers that they would never be hired; and that he asked Rouillard if he was vice president of the Union. He also denied telling Rouillard there was no job for him and that he was not qualified. Acknowledging he was in a hurry since he had not expected Rouillard that day, he denied he was irrational as Rouillard contended. Dupere testified that he was not involved in the decision- making process of hiring, that his job was to interview and to evaluate people from a technical standpoint. According to him, Rouillard had been adamant about the particular slot he wanted and the pay grade. While the Company needed people with computer knowledge, Rouillard "didn't know anything substantial about computers from the conversation that I had." Dupere had asked Feliciano whether he thought Rouillard was qualified as head of RMS, and Feliciano had responded that Rouillard had not been one of the main people involved in the system at Bell. Accordingly, Dupere wrote on the bottom of Rouillard's resume "recommend a lesser position, ditch to electronic tech." 1? Both Dupere and Feliciano acknowledged that Feliciano later told Dupere that Rouillard had been the shop steward for the Union at Bell. 1s At the time Feliciano gave a Board agent an investigatory affidavit, he was shown a copy of Rouillard's resume and stated he would have been qualified for a position as a digital or electronic technician in the Littou denied ever having talked to Rouillard prior to early April 1976 when Rouillard introduced himself and stated that he had brought in an updated resume. Littou received the resume, and they discussed the reasons Rouillard had left Bell and the work he had done there. He testified that he told Rouillard that the new resume would be placed in the file "and they would have to get back to him." According to Littou, "He then proceeded to tell me further about other experiences he had had in the manage- ment area .. . that he had had a position with the Union as an official." Littou responded that he was not interested in that, and that the required information was in his resume. Littou testified: He then proceeded to say that he had had a previous conversation with the NLRB; that the occurrences of the previous - his previous application, he felt, was a rather misunderstanding; and that he hoped that a position would be available to him; and that if it were, I am sure that things could be dropped and everything forgotten. I again informed him that I was not in a position to make a decision on the matter, at that time; and that we would have to get back to him. Littou assumed Rouillard was making reference to the charge filed with the Board.' 9 Rouillard's testimony was not convincing and noticably lacked corroboration from Feliciano, an employee whom he had apparently known for some time. Further, Rouil- lard's testimony conflicts with his investigatory affidavit in several respects. As noted above, the complaint alleges the Respondents' refusal to hire Rouillard because of the Union. To so find, I would have to ignore completely the sworn affidavit which Rouillard gave the Board and which is in evidence, and which states that on July 25 he was offered a job paying $4.50 per hour, and on July 28 was offered one paying $5.10 per hour, both of which were rejected since he would not accept less than $5.65. I suspect that Rouillard's testimony at the hearing makes no men- tion of the offers and refusals since he had learned that the complaint alleged the refusal to hire, which is inconsistent with an offer having been made. His testimonial and affidavit versions of the remarks purportedly made by Feliciano in Dupere's presence, regarding his having been a vice president of the Union and a good chief steward, also are inconsistent. He testified that the remarks were made as Dupere was leaving his office, and that upon his return they arranged to meet again on July 28. In his affidavit he stated the remarks were made by Feliciano at the end of the interview and after the July 28 meeting had been arranged. Feliciano failed to corroborate either version, and in fact corroborated Dupere's denial that any such statement was made in his presence. Further, while both Feliciano and Dupere admit that at some point Feliciano told Dupere that Rouillard had been a shop steward, he denied knowledge that Rouillard had ever been the Union's vice president. Rouillard's account of the July maintenance group. The General Counsel did not contend that Feliciano had any hiring authority or expertise in evaluating the work potential of employees.

19 Littou's testimony stands unrefuted. The first amended charge in Case 20-CA-10477, filed August 8, alleged the unlawful refusal to hire Rouillard. 1246

ZAPEX CORPORATION 28 meeting with Dupere further leads me to doubt his veracity. He testified that, after giving Dupere his applica- tion, Dupere did not say anything for 5 or 10 minutes, until they left the trailer. Yet his affidavit states that, while they were in the trailer, Dupere made him a job offer which he refused. Furthermore, it appears from his affidavit that he volunteered the information to Dupere that he had re- signed as vice president of the Union, while he testified - only after having had his memory refreshed by the General Counsel - that Dupere asked him if he was "actually" the Union's vice president. In sum, I credit the testimony of Dupere and Feliciano over that of Rouillard, and find that the General Counsel has failed to prove by a preponder- ance of the credible evidence the allegations contained in paragraphs VII(B) and VIII of the complaint. D. Alleged Failure To Reinstate Economic Strikers The substance of paragraph IX of the consolidated complaint is that on or about September 2 Respondents refused to reinstate Russell Sharon, Craig Shields, Robert Salczynski, William Horrell, Clyde Varney, Clyde Had- veck, Robert Barela, William C. Rudd, David Spear, Luther Briggs, William Slauson, G. Y. Mak, Boyd Lester, Lawrence Gibb, and Gerald Schmidt because they partici- pated in an economic strike against Respondents. Each of the 15 alleged discriminatees, all of whom were subsequently offered reemployment, will be considered hereafter separately. In addition to those 15 strikers, there were a number of other strikers, some of whom were also recalled, and others who apparently resigned or for some other reason relieved Respondents of the obligation to reemploy them. As noted earlier, in addition to individual requests by most of the alleged discriminatees for reemployment following the strike, on September 3, the Union made an unconditional offer to return on behalf of 26 individuals, including the 15 alleged discriminatees. Excluding the alleged discriminatees, the record establishes the following with respect to the other I I individuals who the Union claimed were strikers: 20 J. L. Ashley, an associate engineer, was hired by one of the BDM affiliate companies on October 1, 1971, and transferred to one of the Respondents effective July 14. He was either terminated or resigned on August 1. S. J. Hubbard, draftsperson, was hired by BDM Services Company February 9, 1973, and was either terminated or resigned July 8. J. E. Barszcz, draftsperson, was hired by a BDM affiliate company November 27, 1972, was scheduled to transfer to one of the Respondents effective July 26, but resigned July 7. M. Nicholson, draftsperson, was hired February 26, 1973, was scheduled to transfer to one of the Respondents effective July 26, but resigned July 7. L. G. Lambert, associate engineer, scheduled to transfer to Respondents July 14, resigned July 10.

20 Names italicized have been reemployed by Respondents.

21 The General Counsel does not contend any unlawful acts associated with either the terminations or resignations of those individuals. C. L Lunsman, systems engineer, hired October 10, 1972, scheduled to transfer on July 26, joined the strike on July 8 and was recalled November 12 as a systems engineer in anticipation of the resignation of systems engineer S. D. Shielke. T. J. McCarten, scientific programmer, scheduled to transfer to one of the Respondent's July 14, joined the strike on July 7 and resigned August 29. Susan G. Douglas, general clerk, was hired and joined the strike on July 7 and was reemployed December 1. George F. Ferris, general mechanic, was hired on July 2, joined the strike on July 7, and was recalled on September 5 as an electrician. George A. Kyriazis, associate engineer, was hired and resigned July 22. Joseph R. Montemurro, carpenter/painter, was hired July 2 and apparently never reported for work. The parties stipulated that the following were also strikers: Eugene T. Wiggins was offered a job as electronic technician I on June 23, which he accepted on June 25 to report July 14. He was offered reemployment on September 5. Arthur C. Hull was offered a job as electronic technician III on July 5 which he accepted on July 7 to report July 8. He was offered reemployment on Sep- tember 5. The record further establishes the following as strikers:

L Z. Wilson, tape certifier with Bell, was offered the same position with Respondent on June 23 which he accepted. He failed to report on July 22. He was again hired on November 28 upon the resignation of Jack S. Duffy who had been hired July 28, apparently because Wilson had failed to report as agreed on July 22. Charles W. Fletcher was hired July 2 as a machinist or welder, withheld his services on July 7, and was reemployed on December 10 as a maintenance me- chanic. Thus, it is seen that out of 30 individuals who one or the other of the Parties contends were strikers, 22 have been offered reemployment, 7 have either been terminated or resigned,2 1 and the status of 1, Montemurro, is unaccount- ed for but apparently not relative to the matter at hand. The General Counsel contends that Respondents sup- pressed evidence and has asked that a specific finding be made that Respondents did not produce subpenaed rec- ords showing temporary striker replacements. Respondents contend that the only temporary employees utilized during the strike were temporary transferees from other BDM affiliates, and that the expense and per diem vouchers which were produced at the hearing disclosed those names. Those vouchers and all personnel files of Respondents were made available to the General Counsel in the hearing room throughout most of the hearing, and on I day the 1247

DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel utilized the services of two additional Board agents to peruse those files. Accordingly, the requested finding and the adverse inference which the General Counsel requests be drawn are denied. The General Counsel contends that openings demon- strated by evidence of new hires after strikers offered to return, quits and terminations of replacements, advertise- ments for new employees, and staffing charts demonstrat- ing Respondents failed to provide staffing levels promised the Army and required by the workload establish that the strikers should have been reinstated prior to their actual recall by Respondents. Respondents contend that a full staff of permanent employees was reached by late August and that, as openings occurred following the end of the strike, the strikers were given first consideration and offered employ- ment to jobs for which they were qualified. Respondents point out, however, that employees were not routinely replaced; rather, that replacements and staff increases occurred only after a survey of current employee resources and CDEC requirements. The evidence establishes that CDEC's requirements vary from experiment to experiment and from day to day within each experiment. To meet this fluctuating demand, Respondents utilized the "matrix system" whereby they were able to shift available qualified manpower from one area of diminishing requirements to an area with increased requirements in place of automati- cally hiring a new employee whenever a need was found in a particular area. In this regard, it must be remembered that Respondents were limited in the amount of money that could be expended, and that they were experiencing a much heavier demand on their resources by CDEC than had been anticipated, resulting in February 1976 in the modification of the contract by increasing the staff size by 19 at a total increase in cost of $150,000. Therefore, prior to February 1976, it was particularly important to anticipate and estimate the level of effort which would be required to perform satisfactorily under the contract within the cost limitations. Economic strikers, as here, who unconditionally apply for reinstatement 22 at a time when their positions are filled by permanent replacements, remain employees and are entitled to full reinstatement on the departure of replace- ments unless in the meantime they have acquired regular and substantially equivalent employment, or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons. The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969) cert. denied 397 U.S. 920 (1970). Citing Fire Alert Company, 207 NLRB 885 (1973), the General Counsel contends that "even if an individual strikers position has been filled by a permanent replace- ment, he is entitled to reinstatement to any position to which he is. qualified to fill." (Emphasis supplied.) After quoting from Laidlaw, the Board in Fire Alert stated, [T]he Respondent's reinstatement obligation . . . is not limited

22 Respondents question the effectiveness of the Union's offer of reinstatement. "Nothing in the Act precludes a minority union from acting as the employee's agent to request reinstatement." N.LR.B. v. I. Posner, Inc., Posner Distributing Corp., 304 F.2d 773, 774 (C.A. 2, 1962).

23 The wage differential between the first- and second-class lineman in New Era was 10 percent. to the strikers' old positions, but rather includes reinstate- ment to substantially equivalent positions which the strikers are qualified to fill." (Emphasis supplied.) In Little Rock Airmotive, Inc., 182 NLRB 666 (1970), the Board stated, "The question of what constitutes 'regular and substantial- ly equivalent employment' cannot be determined by a mechanistic application of the literal language of the statute but must be determined on an ad hoc basis by an objective appraisal of a number of factors, both tangible and intangible, and includes the desire and intent of the employee concerned." Some of the factors which the Board considers relevant are fringe benefits, wage rate, "location and the distance between the location of the job and an employee's home, differences in working conditions, etc." In New Era Electric Cooperative, Inc., 217 NLRB 477 (1975), the Board held that reinstatement to a second-class lineman position was not substantially equivalent to a first-class lineman posi- tion, even though the first-class lineman was clearly qualified to fill the position of a second-class lineman. Factors considered in arriving at the finding were the differences in wage rates2 3 and overtime, and the fact that a second-class lineman works under a first-class lineman. Hence, the applicable test is not the qualification of an employee for the job, but whether the job is substantially equivalent to the employee's prestrike job. The evidence with respect to the reinstatement of each of the alleged discriminatecs disclosed as follows: 24 I. Robert Barela Barela was hired by BDM Services Company in October 1971 and was transferred to Zapex on July 7, 1975, as an associate engineer in the engineering development (ED) lab. At the time he went on strike on July 15, he was in training to take over the position of lead technician in the RMS/DFS system that Russell Sharon had occupied with Bell.25 The record shows that, on August 1, Donovan Palmer was hired to fill that position and was still employed at the time of the hearing herein.2 6 In the afternoon of August 29, Barela called Littou and offered to return to work and was advised that his name would be added to a list and that "he would get back to me." On September 2, Barela directed a mailgram to Littou offering unconditionally to return, and on September 6 was advised by telegram that he had been replaced. By letter dated October 9, Barela was offered, and accepted, a position as associate engineer in PDFS at a salary of $1,058.33 per month. Effective January 1976, Barela received a 7-percent wage increase, and on March 12, 1976, resigned his employment. The General Counsel contends that the record reflects at least 10 specific openings in 4 different job classifications in which Barela could have been reinstated, either immedi- ately or upon his request or at some point between his offer to return and his actual reinstatement.

24 As noted earlier, the strike ended on August 29. 2i Sharon described his job with Bell as section supervisor. The ED lab was later called the PDFS (prototype development fabrication support lab) by Respondents.

26 Barela had been advised that he would be replaced. 1248

ZAPEX CORPORATION Robert Kim was hired on October 6 as an electronic technician 1127 in the field-support section of IMO, and J. E. Soares was hired on the same date as an electronic technician III in the instrumentation support section of IMO. The rate of pay for an electronic technician 11 is $4.94 per hour, or $759.28 per month, and the rate for an electronic technician III is $4.14 per hour, or $636.32 per month.2 8 Associate engineers are salaried, as opposed to being paid on an hourly basis. As noted, Barela's salary upon reemployment as an associate engineer was $1,058.33 per month. It is reasonable to assume that his associate engineer salary as the lead technician in the RMS/DFS system would have equaled that figure. In view of the pay differential (exceeding 28 percent between electronic tech- nician II and associate engineer), it is found that the electronic II and III positions are not substantially equiva- lent to the associate engineer job formerly held by Barela. New Era Electric Cooperative, Inc., supra. The General Counsel contends that Barela should have been offered a number of other electronic technician openings in the RMS/DFS and Radar/DARS/CDL sec- tions of the IMO. The record shows these jobs occupied by electronic technicians II and III. In view of the pay differential set forth immediately above, it is found that those jobs were not substantially equivalent to the associate engineer job formerly held by Barela.29 The General Counsel contends that Barela should have been hired in early September as an associate engineer in

PDFS in place of Timothy Cook and Milton Brown, and to replace A. Nicota 30 who failed to report for work on September 9.31 Associate Administrative Manager Phillips, whose primary duty was "the mechanics of recruiting, hiring personnel," testified that "normally we didn't send the [offer] letter until we had already made a verbal offer and it was accepted." The record shows that job offer letters were sent to Cook and Brown on or about August 18 and 23, respectively, and that the two commenced work on September 2 and 8, respectively. In these circumstances it is found that both Cook and Brown had accepted perma- nent employment prior to the strikers' offers to return to work.32 The evidence shows that, by September 2, A. Nichta had orally accepted a position as associate electron- ic engineer and was to report on September 8, but apparently failed to report on that date. As of September 2, the Respondents employed and had on board eight associate engineers in PDFS, which was the authorized number. Barela was the next associate engineer hired to work in PDFS. The evidence establishes that R. B. Vige was a senior electronic technician with computer experience prior to his employment by Respondent. His employment application is undated; however, a notation on the cover page states

27 See Resp. Exhs. 53(g) - (s).

28 Based on the Army definition of a manmonth consisting of 153.7 manhours.

29 Jeffrey V. Johnson, Dennis Wilson, Thomas N. Haney, and Larry Motherwell were electronic technicians II, and Wilson Roberts was an electronic technician Ill. While the General Counsel contends that Barela and seven other alleged discnminatees should have been hired to replace William P. Kerschner as digital electronic technician in RMS/DFS, no evidence was proffered by either the General Counsel or Respondent regarding Kershner. The exhibits disclosed, however, that all technicians employed in RMS/DFS, as noted above, are in electronic technician 11 and that he would call Phillips on September 2. As the rate of pay he received from his prior employer exceeded the electronic technician I pay scale paid by Respondents, he was offered a salary comparable to that of an associate engineer. Received as Respondents' Exhibits 53 and 54 are a number of organization charts prepared by Phillips for his own use and based on information from both the personnel section and his own knowledge regarding offers and acceptances. People were first listed in the sections or departments in which Phillips thought they would work and the charts were later circulated among the department chiefs and "hopefully" corrected. Prior to his reporting, and in the charts dated November 4, Vige is listed in both the PDFS branch of the engineering department and the computer section of IMO.33 Later charts show him em- ployed as an associate engineer in the computer section of

IMO where he was employed at the time of the hearing. In the organization charts and assignment roster sent the Army in accordance with the contract, Vige is listed only in the computer section of IMO. I conclude from the evidence that Vige was not hired to work in PDFS, but was hired because of his computer background for a position in the computer section of IMO for which it was not shown that Barela was qualified.3 4 Lawrence Gowin, a former Bell employee, was hired on October 1 as expediter, an administrative staff position. The General Counsel contends that all of the alleged discriminatees were qualified and should have been offered this position. The expediter is the chief buyer and is primarily responsible for procurement, which requires knowledge and experience in ordering books and procure- ment procedures. It was not shown that any of the alleged discriminatees possessed the requisite experience required to perform this job. Moreover, the expediter is not within the unit sought to be represented by the Union. The General Counsel contends that Barela should have been hired to replace property control clerk Charles Harris, who left Respondents' employ on September 26, and in place of Gerald W. Roof, who was hired on October 15. The rate of pay for property control clerk is $3.53 per hour. It is found that property control clerk is not a job substantially equivalent to that of associate engineer. The General Counsel contends that Barela should have been hired to replace tape certifier technician Jack S. Duffy who left Respondents' employ on November 28. Aside from the fact that Barela was already reemployed in October, the record shows that Duffy was replaced by L. Z. Wilson, who had held the same position with Bell and who had been hired by Respondents to commence working July 22, but who failed to report because of the strike. Wilson was entitled to reemployment in that position in preference to all of the other strikers. Moreover, the position pays Ill1 pay categories which I find are not substantially equivalent to the pay of an associate engineer.

30 Apparently the General Counsel means A. Nichta.

31 As noted above, Barela was offered an associate engineer position in

PDFS on October 9.

32 The offer letters recite that the positions offered are permanent.

33 His name first appeared in the computer section in an October 6 chart, but not on the October 7 and 15 charts.

34 He was later in Task Force 605. consisting of computer specialists hired specifically to solve the GE 605 computer problems. 1249

DECISIONS OF NATIONAL LABOR RELATIONS BOARD $3.86 per hour, and is not substantially equivalent to that of an associate engineer. Until June or early July, David L. Dalgity and Roy L. Foster, associate engineers, were employed by BDM Corporation pursuant to a Government contract in Flori- da. As that office was to close in August, both men were given the opportunity to transfer to Fort Hunter Liggett, which they exercised. Arrangements were made through the executive vice president for them to receive more relocation expenses than ordinarily given employees. Both men had come to California in June or July, prior to the commencement of the strike, but had left their families in Florida. General Counsel's Exhibit 52 shows the date of hire of each as September 10. Anello testified that both men were considered permanent Zapex employees as of the time they transferred in June or early July, but that the paper transfer did not occur until their second anniversary date of employment with BDM Corporation, which was September 10, 1973. On these facts I conclude both Dalgity and Foster were permanent employees from the beginning of their employment, which was prior to the strike.

2. William Horrell Horrell was hired by BDM Services Company in No- vember 1971 and was scheduled for transfer to Zapex on July 21 as an associate engineer in the ED Laboratory. He became a striker on July 7. On August 29 he called Littou and offered to return to work and was advised that Littou "would get back" to him. On September 2 he reconfirmed his offer by mailgram, and on September 6 received a mailgram advising that he had been replaced. On February 11, 1976, Respondents, by letter, offered Horrell employ- ment as an electronic technician I at a salary of $5.67 per hour, commencing not later than February 19.35 On February 12, the same offer was made by mailgram. Horrell's acceptance and agreement to report for work February 19, 1976, was signed March 3, 1976.36 The General Counsel contends that the record reflects a number of specific openings in classifications in which Horrell could have been reinstated prior to February 1976. For the reasons expressed above regarding Barela's rein- statement as an associate engineer, it is concluded that the positions for which the following were either hired, or from which they left employment, were not substantially equiva- lent to the associate engineer job for which Horrell had initially been employed: Jeffrey V. Johnson, Timothy Cook, Milton Brown, Dennis Wilson,37 A. Nichta, Law- rence Gowin, Larry Motherwell, William P. Kershner, Wilson Roberts, Thomas N. Haney, Gerald W. Roof, Charles Harris, and Jack Duffy. No additions were made to the PDFS section following the October reinstatement of Barela, until after the Respondents' January reorganization and the contract between the Army and Respondents had been modified on February 1, 1976, by increasing Respon- dents' staffing size by 19. Horrell's offer of reemployment

35 While the record does not disclose the rate of pay Horrell was to receive as an associate engineer with Zapex, he testified he had received $6.49 per hour ($997.51 per month computed on the Army proposition that 153.7 manhours are equivalent to a manmonth) working as an associate engineer for BDM Services Company. 3s Whether Horrell commenced work on February 19 or March 3 is not revealed in the record. followed on February 11. The General Counsel contends that Horrell should have been recalled to replace Francis R. Hertz, an electronic technician II in RMS/DFS, who left Respondents' employ on November 13, and calibration technician William Shoemaker who left Respondents' employ on January 16, 1976. Shoemaker's pay classifica- tion was that of an electronic technician III. For reasons stated before, the electronic II and III classifications are not substantially equivalent to that of an associate engi- neer. The General Counsel contends that Horrell should have been hired to replace Robert Runyon, an electronic technician I in the field support branch of IMO, who left Respondents' employ on November 28. The record shows that, prior to Runyon's leaving, there were 10 employed in the field support branch. James McComas, the lead technician in field support, sustained an injury in Septem- ber and was hospitalized for an undisclosed amount of time. During his hospitalization, the branch operated with an acting lead technician and nine employees. After Runyon left, the branch operated with an acting lead technician and eight employees. As noted, in January 1976, Respondents underwent a reorganization and the field support branch of IMO became a part of the PDFS branch. Upon his release from the hospital, McComas returned to PDFS. The record does not disclose that a new employee was hired in either ED or PDFS following Runyon's departure until after the reorganization and authorized increase in the size of the staff in February 1976 when Horrell was reinstated.

3. Russell Sharon As earlier stated, Sharon was employed by Bell as an electronic technician, and during his last 8 months of employment was a section supervisor in the RMS/DFS. He was interviewed by Respondents in late June and offered a job as an electronic technician paying $4.94 per hour,38 commencing July 14. On July 13, he was called by Dupere and offered a job as associate engineer commencing on July 14 and paying $1,000 per month.39 Upon completing his employment with Bell on July 14, he joined the strike. On September 2 Sharon contacted Littou and offered to return to work. Littou told him that "they were about 99 percent manned and he would have to get back to me." Sharon is listed on the names submitted by the Union dated September 3 as unconditionally offering to return to work. On February 23, 1976, Respondents sent Sharon a telegram and letter offering him a job as electronic technician I paying $5.67 per hour commencing March 1. On February 25, Sharon advised Respondents by letter that he was refusing the job because "I find the salary unacceptable." He testified he declined the job "because I am already working [for someone else]." 4 0 The General Counsel contends Sharon should have been reinstated immediately in view of three radar technician 3a As will appear hereafter, the record establishes that Wilson accepted employment prior to the end of the strike.

38 Electronic technician II rate.

39 He was never advised what his job assignment would be.

40 The date he accepted other employment was not established. 1250

ZAPEX CORPORATION openings in the radar/DARS/CDL section of IMO as of September 2, and another opening on September 5; that he could also have been reinstated immediately to the vacancy in the RMS/DFS section of IMO; that he was qualified for the electronic technician vacancy in the instrumentation support section for which Dennis Wilson was hired on September 8; that he could have been hired in place of Larry Motherwell on October 6; and that he was qualified to fill the position vacated by Kershner on August 29, by Haney on September 15, by Harris on September 26, by Hertz on November 13, by Runyon on November 28, and by Roof on December 15. The evidence shows that Sharon's prior experience was as a radar and electronic technician and that he was qualified to work on the RMS/DFS since he had been the supervisor in that section while working for Bell. He also claimed 2 years' experience as a digital technician. The evidence does not disclose the position Sharon was to have filled had he reported on July 14. Respondents' Exhibit 53(a) indicates that on September 3 the radar/DARS/CDL section of IMO had an autho- rized strength of nine employees, but actually employed six, with W. H. Roberts scheduled to terminate on September 5. On September 8, Arthur C. Hull, a striker, was recalled and commenced working in that section as a radar technician. In October, Hull left Respondents' employ, and immediately prior thereto strikers Varney and Hadveck were recalled as electronic technicians II and I, respectively. Hadveck terminated on December 2, and was not replaced. While the authorized strength of ra- dar/DARS/CDL exceeded its actual strength by two or three employees throughout November and December, it does not appear Respondents experienced a need to increase the strength in that section to the authorized strength. Moreover, it is particularly noted that all of the three employees hired into that section from September through December were strikers. As those three and Sharon enjoyed equal status as past participants in a strike, Respondents would derive no advantage in selecting one over the other on the basis of their past activities. Accordingly, I find no merit in the General Counsel's contention that Sharon should have been reinstated in those positions. The General Counsel contends that Sharon could have been recalled immediately to a vacancy in the RMS/DFS section of IMO. On September 2, the RMS/DFS section had an authorized strength of either 10 or I 1, and an actual strength of 9 employees. On September 5, Eugene T. Wiggins, who the parties stipulated was a striker, was offered and accepted a position as a digital electronic technician in that section, bringing its strength up to 10, which is shown thereafter as the authorized strength. As Wiggins and Sharon were of equal status as strikers, Respondent would have derived no advantage in selecting one over the other, unless the advantage rested on qualifications. I therefore find no merit in the contention that Sharon should have been reinstated to RMS/DFS immediately in place of Wiggins. The General Counsel contends that Sharon should have been hired in place of Dennis Wilson as an electronic technician in the instrumentation support section of IMO. The evidence convinces me that Wilson was hired prior to the end of the strike, hence prior to the time Sharon made his September 2 offer to return to work following the strike. The record shows that at the time Wilson was hired he lived in Alhambra, California, and that on August 29 he received relocation funds pursuant to the Respondents' "new employee relocation" policy, and thereafter received additional funds pursuant to that policy while securing a permanent residence. I find it most unlikely that Respon- dents would have reimbursed Wilson for relocation ex- penses had he not already accepted employment prior to August 29. Wilson's name is already typed in on the organizational chart which Phillips used on September 3, indicating that Wilson was "due in" on September 8. Had his reporting date not been arranged prior to September 3, the entry to that effect would have been entered in longhand on September 3. Accordingly, I find that Dennis Wilson was hired prior to the end of the strike and prior to the offers of any of the alleged discriminatees to return following the strike. According to the General Counsel, William P. Kershner was hired as a digital electronic technician in RMS/DFS. He left Respondents' employ on August 29. While the staff assignment lists furnished the Army on June 26 and July 15 list Kershner as one of nine digital/electronic technicians, neither the organizational nor matrix charts for August (G.C. Exh. 5(c)) show Kershner employed in any category. The chart for IMO shows, however, the 10 employees who were employed in RMS/DFS, and the last name listed is that of E. T. Wiggins, who the parties stipulated was a striker, who was offered reemployment and commenced working on September 5. Thus, Respondents apparently hired a striker to fill the vacancy created by Kershner's termination, and it does not appear any advantage was derived in selecting one striker over the other. The General Counsel contends that Sharon should have been hired to replace Thomas N. Haney who was em- ployed as one of three calibration technicians from August

I 1 to September 15. His pay grade was that of an electronic technician II. Anello testified without contradiction that Haney was not replaced since the work he was doing could be, and was, adequately performed by the remaining two calibration technicians. Hence, his job no longer exists. Charles G. Harris was hired as a property control clerk on August 11 and left on September 26. G. W. Roof was hired as his replacement on October 15, and left on December 15. From an organizational standpoint, property control clerks fall in administration and are paid $3.50 per hour. As a full-time property control clerk was no longer needed at Hunter Liggett, following Roof's departure the property control clerk from Fort Ord has spent from I to 2 days at Hunter Liggett doing the necessary property control work. As Roof has not been replaced, and as the job of property control clerk is not substantially equivalent to that of an associate engineer or electronic technician (a pay differential of 15 percent below electronic technician 111, 29 percent below electronic technician II, 38 percent below electronic technician I, and even more below an associate engineer pay rate), and for the further reason that it is not within the unit which the Union sought to represent, I find no merit in the General Counsel's 1251

DECISIONS OF NATIONAL LABOR RELATIONS BOARD contention that Sharon or any other of the alleged discriminatees should have been hired to replace either Harris or Roof. Francis R. Hertz was hired on July 28 as a laser technician with an electronic technician II title. The organization charts (G.C. Exh. 5) show Hertz assigned to the RMS/DFS section of IMO. He left Respondents' employ on November 13. Because of computer problems brought on by the strike, Respondents recruited and hired several individuals with special knowledge of computers. P. M. Dankert, an electronic technician II, computer techni- cian, received an offer letter dated August 20, and commenced working September 2. He left on September 12. None of the alleged discriminatees was qualified as a computer technician. Richard B. Vige, another computer specialist, commenced work on September 28 or 29 and was initially assigned to the ED lab (PDFS) and later reassigned to the computer section of IMO. (Resp. Exhs. 53 and 54). Larry Motherwell, a former Bell employee with experience on the GE 605 computer, commenced work on October 6 as an electronic technician 1I, and was initially assigned to the computer section, bringing the strength of the department to the authorized level of five, excluding the acting lead technician. Eugene F. Martin, a computer technician, was hired on November 6 as an electronic technician I and was assigned to the computer section of IMO. Gerald E. Lee, a computer technician, was hired on November 14 as an electronic technician 1, and assigned to the computer section of IMO. Clarence R. Shryock, a computer technician with repair and maintenance experi- ence on the GE 605 computer, was hired December 1 as an electronic technician I and assigned to the computer section. With four technicians already in the computer section, Carley, Dunham, Sweeney, and Corman, it can readily be seen that, as the new computer technicians were hired, the section exceeded its authorized complement of five. Accordingly, with the addition of Martin, Lee, and Vige (Vige first appears in the computer section in November - Resp. Exh. 53(m)), Motherwell and Corman appear on the organizational charts (Resp. Exh. 53(m)) in the RMS/DFS section, leaving the computer section with an authorized complement of five, but with an actual complement of seven. At that point the RMS/DFS section shows an actual complement of 11, with an authorized complement of 10. Thus, it appears to me the Respondents were in the process of overloading the computer staff with the object of solving its major problem - computer failure - but at the same time trying to stay within the projected resources by assigning the excess computer technicians to other sections of the organization. Hence, Motherwell and Corman appear in the RMS/DFS section at the time Hertz left, resulting thereafter in the computer section exceeding its authorized complement by 2, and RMS/DFS at its authorized complement of 10. Therefore, at the time Hertz left, there were no openings in the RMS/DFS section, and

IMO either equaled or exceeded its authorized comple- ment.41 Regarding the General Counsel's contention that Sharon should have been hired in place of Larry Motherwell on

41 The computer technicians were later consolidated into a GE 605 task force. October 6, the record establishes that Respondents needed someone with working experience on the GE 605 comput- er, a job which Motherwell had held with Bell and was therefore considered qualified. Sharon lacked experience on the GE 605. Accordingly, I find no merit in the General Counsel's contention.42 The General Counsel contends that Sharon should have been hired to replace Robert A. Runyon, an electronic technician I in the field support branch of IMO, who left on November 28. Neither the testimony nor the organiza- tion charts disclose a replacement was ever hired to fill the slot vacated by Runyon until after the reorganization and authorized increase in the size of the staff in February 1976, at which time Horrell was reinstated. .The General Counsel contends that Sharon, Briggs, Lester, Gibb, and Spear should have been hired in place of Ruth Parry and Bernard Pardo who commenced work on September 9 and 22, respectively, as physical scientists. No testimony was elicited regarding the qualifications, duties, or pay category for physical scientists. A comparison of names and job titles listed in General Counsel's Exhibit 52 with the organization charts in General Counsel's Exhibit 5 shows that both Parry and Pardo were assigned to the experimentation support department. The pay category for scientists appears to cover several categories of scientists, including operations research analyst, whereas the alleged discriminatees are in engineering and electronic technician classifications. As the record fails to show the above discriminatees were experienced or qualified to work as scientists, I find the General Counsel's contention lacking in merit.

4. David Spear Spear was hired on May 3, 1973, and was working as a project engineer for BDM Services Company at the time of his transfer to Zapex on July 1, 1975. His last day of work before joining the strike was July 8. On September 2, he made a personal appeal for reinstatement and was told he would be contacted. On September 3 he was advised by mailgram that he had been replaced. On February 4, 1976, he was orally offered a position as a systems engineer paying $1,233.33 per month. The offer was confirmed by both a mailgram and letter. He commenced work again on February 10, 1976, at Fort Hunter Liggett, and resigned on March 22, 1976. The General Counsel contends that Spear should have been offered immediate reinstatement upon application in view of the fact that Sherman F. Wince, George B. Sweeney, Martin Thrasher, Jr., and Arthur F. Mitchell were "acting" project engineers at that time, and for the further reason that the Army had declared them as not qualified. Mitchell was hired by BDM Services Company on June 3, 1974, and at the time of the strike was working as a senior military analyst. In view of many years of prior

CDEC experience with the Army, during and following the strike he was assigned as a project engineer. Sweeney was hired on July 14 as an engineer, having recently retired from the Army where he had been the assistant deputy

42 Anello testified that three former computer technicians with Bell, Dunham, Dankert, and Mattson had failed to report because of the strike. 1252

ZAPEX CORPORATION chief of staff, instrumentation, for CDEC, and was respon- sible for the planning, coordination, and direction of all activities associated with several instrumentation and support systems. Thrasher, an Army retiree, was hired on July 14 as a project coordinator, having had prior experi- ence as deputy chief of staff, instrumentation, at CDEC. Wince was also hired on July 14 as an engineer, having had prior Army experience as assistant deputy chief of staff, instrumentation, for CDEC. None of the four possessed engineering degrees and, by letter dated November 4, the contracting officer's representative advised Respondents that the Army considered 19 named employees not qualified, Mitchell, Sweeney, Thrasher, and Wince on the grounds they lacked the required engineering degrees. By letter dated December 19, the contracting officer advised Respondents of "several areas of deficiency," including the list of 19 whom the Army considered "not qualified." In the "cure" letter of July 24, the contracting officer had contended that Mitchell and Del Presto were not qualified to handle a job of project engineer. In his August 8 response to the "cure" letter, Hofer stated that the strike replacement (apparently Del Presto) had qualifications which exceeded those of the striker he replaced (Spear), but that, since he had had no prior CDEC experience, an acting project engineer (presumably Mitchell) with exten- sive instrumentation experience had been assigned to assist the project engineer, "particularly in his orientation relative to CDEC operations." Hofer contended that the assign- ment of an acting project engineer with CDEC experience would "greatly accelerate the Project Engineer's orienta- tion, and that full Project Engineering capability will be established on or before 15 August and will not require the 3 months estimated by the Government." Elsewhere in his letter, Hofer stated "BDM management personnel with special experience in CDEC instrumentation have been assigned to the Instrumentation Support Department of SSL. These personnel have all functioned in engineering management positions in the CDEC military organization and are thoroughly familiar with CDEC instrumentation and experimentation. They have been assigned as acting project engineers. They are providing interim services which are particularly effective in expediting the orienta- tion of other replacement personnel with no CDEC experience and in interfacing with CDEC personnel. They will be replaced by project engineers, but will work with these engineers for several months to assure continuity in the engineering projects." (Emphasis supplied.) Thus, it would appear that Mitchell, Sweeney, Thrasher, and Wince were made "acting project engineers" for the express purpose of orienting replacement personnel with CDEC operations, and were later to be replaced by permanent project engineers. 43 It is settled that an employer may refuse to reinstate economic strikers if in the interim he has taken on permanent replacements. Here, however, the Respondent had taken on four project engineers that were not perma-

43 The engineering department organization charts (Resp. Exh. 54) show that, for the months of September, October, November, and December, the project engineering branch ran four employees over the authorized number of seven.

44 In view of my finding herein, it is unnecessary to determine whether Spear wculd have been entitled to fill other alleged job vacancies. Spear and nent, and whom it had advised the Army it intended to replace with permanent project engineers. No business justification was given for not replacing one of the "acting" project engineers with a qualified project engineer on his unqualified offer to return to work, nor was any justifica- tion given for not returning Mitchell and Thrasher to their respective positions as senior military analyst and project coordinator, the jobs for which they were hired, in order that Spear and another qualified project engineer could be reinstated. Hence, Spear was entitled to immediate rein- statement on September 2, the date he made his uncondi- tional offer to return to work. 44

5. Luther Briggs Briggs started working for BDM Services Company in December 1972 and worked as a systems engineer doing photooptical support work at Fort Hunter Liggett until he joined the strike on July 7. The record shows he was scheduled to transfer to Zapex on July 21. On August 29 he called Littou and offered to return. On September 3 he sent a mailgram confirming the offer, and shortly thereafter received a mailgram to the effect he had been replaced. By letter and mailgram dated February 4, 1976, he was offered employment as a systems engineer at a salary of $800 per month, and on February 5 returned to work. 45 The record shows that Briggs' experience with BDM Services Compa- ny had been limited to photooptical work, and that he was replaced by Garrick Rindler and Richard Woodcock who were still working at the time of the hearing herein.46 The General Counsel contends that Briggs should have been reinstated immediately or at various times when other employees discussed below were either hired, quit, or terminated. Joseph A. Knight commenced working as a systems engineer on September 8. While the record does not reflect the date of his acceptance of employment, it discloses that Knight lived in Phoenix, Arizona, at the time of his job offer and acceptance, and that commencing September I he received relocation funds pursuant to the Respondents' "new employee relocation" policy, and thereafter received additional funds pursuant to the policy while securing a permanent residence. A written offer of employment was sent him on Friday, August 29. As noted earlier, written offers were not normally made until after oral job offers had first been accepted. Further, the evidence shows most written acceptances were signed after the employee had actually commenced working 47 and, in Knight's case, he signed the acceptance on September 3, obviously after his arrival in California. Accordingly, it is found that Knight had accepted permanent employment prior to the strikers' offer to return to work. The General Counsel contends that Briggs should have been hired to replace Knight after he left on November 6. The record shows that Knight had Rudd were the only experienced project engineers among the alleged discriminatees.

45 His signature of acceptance on the offer letter is dated February 26, 1976.

46 Briggs had informed the General Counsel of his replacements.

47 See fn. 45. 1253

DECISIONS OF NATIONAL LABOR RELATIONS BOARD been involved in a solar power study which was completed- and that he was not replaced.48 The General Counsel contends that systems engineer Donald Romanzo was a temporary employee at the time the strike ended, and that Briggs, Gibb, Lester, Rudd, Slauson, or Spear should have been hired to replace him immediately on the termination of the strike. On August 9, Romanzo accepted an August 6 job offer and commenced work on August 18. 49 He resigned effective September 12, to accept another job. His letter of resignation, which bears the date of August 8, reads:

I respectfully submit this letter of resignation from employment by Zapex Corporation to be effective the week ending Friday, September 12, 1975. My reason for changing employment is solely related to a substantial improvement in salary offered by my new future employer. Please withhold from my final paycheck travel allowance advanced me upon my starting employment with you in August. Thus, from the dates appearing on the document it appears that Romanzo resigned his employment the day before he accepted employment, and 10 days before he commenced working. I consider that fact highly unlikely, and from a reading of the letter of resignation conclude that it was written on September 8, and erroneously bears the August date. In this regard, the last paragraph of the letter refers to the "travel allowance advanced upon my starting employ- ment with you in August." (Emphasis supplied.) Thus, it is seen that the letter refers to events which have already occurred - his receipt of a travel allowance upon his starting to work. Accordingly, I find that Romanzo was not hired as a temporary employee. 50 The record further shows that in September the Respondents were overstaffed with systems engineers and that Romanzo was not replaced. The General Counsel contends that Respondents dis- criminated against Briggs by hiring Robert Drake on January 1, 1976. Drake was hired on January 30, 1976, as a computer specialist and assigned to Task Force 605. None of the alleged discriminatees was qualified to fill the position for which Drake was hired. The General Counsel contends that evidence of lack of business justification for failure to reinstate Briggs and other alleged discriminatees (including Gibb, Lester, Rudd, Slauson, and Spear) is reflected by the Respondents' failure to explain why he (or they) was not recalled after Leonard Rice quit on September 1, Charles Naegeli quit on October 10, Frank Scruggs was fired on November 4, Edward Murphy quit on November 5, or Michael Rak quit on November 18. The exhibits show that, at the time Rice left, the systems engineering branch employed 17 systems engineers, with Knight (who had accepted employment prior to the end of the strike) scheduled to report on September 8. The authorized complement for the branch was 15; hence, following the departure of Rice on Septem- 4s My findings regarding Knight are equally applicable to Gibb, Lester, Rudd, Slauson, and Spear.

49 The offering letter states. "This offer is considered a permanent position and it is not conditioned upon or affected by any resolution or failure to resolve any current labor dispute." ber I and Romanzo on September 12, the systems engi- neering branch was still I over the authorized complement. Anello testified that Rice was not immediately replaced since Scruggs was doing the same work in which Rice had been engaged. Exhibits and testimony show that neither Naegeli, Scruggs, Murphy, nor Rak was immediately replaced. Further, the record shows that the only systems engineers hired following the end of the strike were strikers. Thus, Lunsman was recalled on November 12 as a systems engineer in anticipation of the departure of Steven Schielke who had replaced Lunsman when the latter joined the strike; 51 and Rudd and Lester were both recalled on November 28, Briggs returned on February 5, 1976, and Gibb declined an offer of reinstatement on February 10, 1976. In his brief the General Counsel also contends that the failure to explain why Briggs was not hired as a physical scientist in place of Ruth Parry on September 9, in place of Bernard Pardo on September 22, and as a research analyst in place of Mary L. Woodyard on October 10 and John R. Rader on October 14 is "additional evidence of Respon- dents' lack of business justification for failing to reinstate Briggs and the other systems engineers at an earlier date." This position was not asserted at the hearing, nor was testimony elicited regarding the qualifications or pay categories for physical scientists or research analysts. The organization charts show Parry, Pardo, Woodyard, and Rader assigned to the experimentation support depart- ment. The record does not disclose the comparative wage scales between the experimentation support department employees and the engineering department, nor the type of work performed by the physical scientists and research analysts so that a determination can be made as to whether experimentation support department work is substantially equivalent to that of systems engineers in the engineering department. Accordingly, no merit is found in the General Counsel's contention regarding the failure to recall engi- neering department employees to replace experimentation support department employees. 5 2 The General Counsel contended, for the first time in his brief, that Briggs, Slauson, Lester, Gibb, or Spear should have been hired to replace Donald Criley, who left Respondents' employ on September 5. While no testimony was elicited regarding Criley, a comparison of names and job titles listed in General Counsel's Exhibit 52 with the proposed staff assignments in General Counsel's Exhibit 5(b) shows that Criley was assigned as a mathematician. As the record fails to show the qualifications, duties, or pay rate for the mathematician, it is not possible to determine whether that job is substantially equivalent to the engineer- ing department jobs. Accordingly, no merit is found in this contention by the General Counsel.

6. Lawrence Gibb Gibb was hired by BDM Services Company in early 1973 and was scheduled for transfer to Zapex on July 14. At the

50 These findings are equally applicable to Gibb, Lester. Rudd, Slauson, and Spear.

51 Schielke had expressed dissatisfaction with his salary, and the Respondents expected he would quit shortly.

52 Briggs, Lester, Gibb, Sharon, Slauson, and Spear. 1254

ZAPEX CORPORATION time he joined the strike on July 7, he was working as a systems engineer. The staff assignments (G.C. Exh. 5(b)) disclose he was slated to be a systems engineer for Zapex. Gibb failed to contact the Respondents following the end of the strike; however, on September 3 the Union made an unconditional offer to return on his behalf. On February 10, 1976, the Respondents sent Gibb a telegram offering him a job as an engineer at $958.34 per month starting on or before February 17, 1976. The telegram was sent to Gibb's address at Jolon, California. On February 26, Gibb sent the following telegram to Respondents:

I hereby accept your offer of employment with the Zapex Corporation. However, I again request that the monies owed me by BDM Services for 31.99 hours of vacation and 33 hours of compensatory time be paid. Your check number 1071 was returned on November 10 because of incorrect vacation hours. Please contact me at route # 1, Box # 126, Lompoc, California 93436. When this matter is corrected I will report to Ft. Hunter Liggett as agreed. By letter dated March 9, 1976, a check was sent to Gibb who thereafter failed to report for work. It appears from a form sent the Respondents on April 6, 1976, from the State of California Employment Development Department, that Gibb informed the department that he had declined Respondents' job offer because "he could not commute and would be forced to relocate after living in the Lompoc area for 9 months." The department advised the Respon- dents "as mentioned, this was only one reason, but this alone would justify good cause to refuse this opportunity for employment." (Resp. Exh. 51.) Thus, the Respondents contend that Gibb had abandoned his employment. While this evidence may be indicative of such an intent, the matter was not explored in depth, and without more is not sufficient to make a finding that Gibb abandoned the strike and/or employment in the summer or fall of 1975. The General Counsel contends that Gibb was qualified for the communication technician position which Kim and Soares were hired to fill in early October. Contrary to the General Counsel's contention, Kim was not hired as an electronic technician I, but was hired as an electronic technician II. By April 1976, the date of General Counsel's Exhibit 52,53 on which the General Counsel bases his statement that Kim was an electronic technician I, Kim had apparently received a raise as had a number of other employees, including some of the alleged discriminatees. However, Anello testified that Kim had been hired as an electronic technician II, and his testimony is corroborated by the organization charts, Respondents' Exhibits 51(g) - (s). The rate of pay for an electronic technician II is $4.94 per hour, or $759.28 per month, and the rate for an electronic technician III is $4.14 per hour or $636.32 per month.54 While the record does not disclose the wage Gibb was to have received had he not gone on strike, his offer of reinstatement as a systems engineer was at a salary of $958.34 per month, or the equivalent of $6.24 per hour based on the Army manmonth. In view of the pay

53 The General Counsel's brief refers to G.C. Exh. 53, an obvious typographical error. differential (exceeding 20 percent between electronic tech- nician II and systems engineer, and 33 percent between electronic technician III and systems engineer), it is found that the electronic technician II and III positions which Kim and Soares were hired to fill were not substantially equivalent to the job of systems engineer. New Era Electric Cooperative, Inc., supra. Regarding the General Counsel's contention that Ro- manzo was a temporary employee, that Gibb could have been hired 6 weeks earlier in lieu of hiring Robert Drake, that he should have been hired to replace six systems engineers, and in place of two scientists and two research analysts, see the discussion regarding Knight, Romanzo, Rice, Naegeli, Scruggs, Murphy, Rak, Parry, Pardo, Wood- yard, Rader, and Criley in section D, 5, which is equally applicable with respect to Gibb.

7. Boyd Lester Lester was initially hired in 1973 and worked as a systems engineer for BDM Services Company prior to striking on July 7. He had been scheduled to start as a systems engineer for Zapex on July 21. On August 29, he called Littou and advised that he was ready to return to work, and was told that Littou would get in touch with him. By mailgram dated September 2, he confirmed his unconditional offer to return. He was advised by mailgram dated September 5 that he had been replaced. By letter and mailgram dated November 28, Lester was offered, and accepted, reinstatement as a systems engineer at a salary of $1,208.33 per month. With respect to the General Counsel's argument that Lester should have been hired either in place of or following the terminations of the following individuals, see the discussions regarding those individuals in section D, 5, which are equally applicable with respect to Lester: Joseph Knight, Donald Romanzo, Edward Murphy, Charles Naegeli, Leonard Rice, Frank Scruggs, Michael Rak, Ruth Parry, Bernard Pardo, Mary L. Woodyard, John Rader, and Donald Criley.

8. William Rudd, Jr. Rudd was hired initially in 1971 and had worked for

BDM Services Company as both a project and systems engineer at Fort Hunter Liggett. He was scheduled for transfer to Zapex on July 7 as a systems engineer, and worked for Zapex for 4 hours on that date before joining the strike. On August 29 he called Littou and stated he was requesting unconditional return to work. The request was renewed by mailgram on September 2. On September 3, he received a telegram stating he had been replaced. While Rudd lacked an engineering degree, it appears he had broad experience in the radar and electronics field and was considered by the Respondents to be a "very good" engineer. By both telegram and letter dated November 28, " Based on the Army definition of a manmonth consisting of 153.7 manhours. 1255

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rudd was advised that he was being reinstated as a systems engineer at a salary of $1,433.34 per month, 55 the same he earned prior to the strike, and asked to report on December 1, which he did. The General Counsel contends that Rudd should have been reinstated in lieu of hiring Weston Kornemann as a project engineer on September 2, or Joseph Knight as a systems engineer on September 8. The record shows that the Respondents customarily sent out offer letters after a verbal offer had been accepted. The offer letter to Korne- mann was sent on or about August 15, and he reported for work on September 2. I conclude from this evidence that Kornemann accepted a job prior to the August 29 end of the strike and offers to return to work. Regarding Knight, as previously found, 56 Knight, who lived in Phoenix, Arizona, was sent an offer letter on Friday, August 29. In all probability he never received that letter since an acceptance letter was not signed by him until September 3, after his arrival in California. However, he commenced receiving relocation funds pursuant to the Respondents' "new employee relocation" policy commencing September 1, and thereafter received additional funds pursuant to that policy while securing a permanent residence. These facts convince me that Knight accepted the position prior to the end of the strike, and proceeded on September I to move to California based on an earlier oral offer and acceptance which was confirmed in writing after his arrival in California. 57 Regarding the General Counsel's contention that Rudd should have replaced Donald Romanzo, and should have been recalled when other systems engineers (Rice, Naegeli, Scruggs, Murphy, and Rak) quit their employment on various dates between September I and November 18, see my discussion under Luther Briggs. The General Counsel contends that Rudd "was quali- fied, if not overqualified, for numerous technician positions which were vacant prior to his reinstatement," and Re- spondents had no excuse for not offering such a position to him. The technician jobs referred to are all in the electronic technician I, II, and III pay categories. As noted above, Rudd's rate of pay as systems engineer was 39 percent, 47 percent, and 55 percent higher, respectively, than electronic technician categories 1, II, and III. On the basis of New Era Electric Cooperative, Inc., supra, I find those jobs not substantially equivalent to that of systems engineer. The General Counsel contends that Rudd should have been hired in place of associate engineer Timothy Cook, who commenced working on September 2. As noted in section D, 1, an offer letter had been sent to Cook on August 18 and he commenced working on September 2. Having credited the testimony of Phillips that offer letters were not normally sent until a verbal offer had been made and accepted, and noting the time lag between August 18 and September 2, I conclude and find, as earlier, that Cook accepted the associate engineer job prior to the end of the strike, and reported for work on September 2. Further-

55 Based on the Army manmonth figure, Rudd's rate of pay was $9.32 per hour, or 39 percent higher than the rate for electronic technician 1, 47 percent more than electronic technician II, and 55 percent higher than electronic technician Il1.

86 See analysis in sec. D,5.

57 It does not appear to have been unusual for an employee to have more, while the record does not reflect the salary Cook received as an associate engineer, Sharon's salary offer as an associate engineer was $1,100 per month, or 23 percent less than Rudd's salary as a systems engineer,58 leading to the conclusion that an associate engineer salary is not substantially equivalent to that of Rudd's systems engineer salary. As noted, Rudd had worked for BDM Services Company as a project engineer at Fort Hunter Liggett and was considered by the Respondents as a "very good" engineer. In considering the recall rights of Spear, it was found that, when the strike ended on August 29, the Respondents employed four "acting" project engineers, Wince, Sweeney, Thrasher, and Mitchell, whom it intended to replace with permanent project engineers. As in the case of Spear, no business justification was given for not replacing one of the "acting" project engineers with Rudd, a qualified project engineer, on his unconditional offer to return to work, nor was any justification given for not returning Mitchell and Thrasher to their respective positions as senior military analyst and project coordinator, the jobs for which they were hired, in order that Rudd and Spear could be reinstated. Therefore, I find that Rudd was entitled to immediate reinstatement, at the time he made an uncondi- tional offer to return.

9. William Slauson 59 Dr. Slauson, whose educational background included a B.S. in physics and a Ph.D. in electronic engineering (solid state physics), commenced working for BDM, Inc., in 1973 as a senior engineer. His transfer to Zapex was scheduled to take place on July 7. From his following letter to Zapex dated September 2, received September 3, it appears he became a striker on July 9:

I wish to return to work for Zapex Corp. and be reinstated as a senior engineer in the Long-Range Planning Branch, the position which I held before I withheld my services to Zapex Corp. from July 9 to September 1, 1975, in sympathy with and support of issues underlying the IBEW strike. I am ready to report to work immediately. I expect no lesser duties, salary, and benefits (including those accrued before July 9, 1975) than I executed or received before July 9. My return to work should not be construed by Zapex Corp. or any other party in any way involved in the Local 2182 IBEW strike to imply that I waive any rights which I may have under Federal and State Labor Codes. On November 1, in an appeal from a decision by an administrative law judge from the California Department of Employment Development, disqualifying Dr. Slauson from certain unemployment benefits, he stated in pertinent part: signed an acceptance letter until after starting work. Horrell returned to work on February 19, 1976, and signed an acceptance letter on March 3, 1976. Briggs returned to work on February 5 and signed an acceptance letter on February 26, 1976.

58 Barela's salary as an associate engineer was $1,058.33 per month.

59 Dr. Slauson did not testify. 1256

ZAPEX CORPORATION

I did not cross the picket lines to go to work on and after July 9, when the lines were established at Fort Ord, and honored this line until August 29 when I initiated my requests to return to work. During my absence in July my duties were assumed by Warren Belfer, a Zapex Corp. employee, who was employed before the dispute. Mr. Belfer now performs a major part of my duties; my working files were transferred completely to his control by early September. On July

21 Mike Licata began working for Zapex Corp. as a long-range planning engineer, thus filling the vacancy in this group due to my absence and becoming the fourth such engineer required of Zapex Corp. by Army contract DAAG08-75-C-0105. Mr. Licata is still em- ployed in this position. Though I was not formally notified that I had been replaced until Zapex Corp. responded to my request for reinstatement on September 2, I claim that I was replaced effectively July 21 when Mr. Licata began work and by which date Mr. Belfer had assumed most of my duties ... On December 11, Dr. Slauson advised the Respondent that he had accepted a job with another employer and that "This letter releases the BDM Corp. and its subsidiary Zapex Corp. from any obligation to reinstate me now or in the future...." Nevertheless, by letter and telegram dated February 20, 1976, the Respondents offered Dr. Slauson a job as senior engineer at a salary of $1,500 per month, which he declined by letter dated February 24, 1976, wherein he reiterated his resignation of December 1.60 The General Counsel contends that Dr. Slauson's educa- tion and experience qualified him for a position as a project engineer, a systems engineer, or a physical scientist, claiming specifically he should have been hired in Septem- ber in place of physical scientists Ruth Parry and Bernard Pardo, and that he could have been immediately reinstated as a project engineer in place of Sweeney, Thrasher, Wince, or Mitchell, who, the evidence shows, were "acting project engineers" whom the Respondent intended to replace with project engineers.6 It is clear from the record that the Respondents, in their February technical proposal in response to the Army's RFP, proposed the employment of four long-range plan- ners (G.C. Exh. 3), and in its July 9 letter to CDEC, listed the long-range planners as R. A. King, Dr. Slauson, W. B. Belfer, and R. L. Grimmer. 62 The record further shows that, after Dr. Slauson joined the strike, M. J. Licata was hired as a senior engineer on July 21 and assigned to long- range planning.6 3 Anello testified that Licata was hired as Dr. Slauson's replacement. No new long-range planners were hired, although it appears from the organization

60 Dr. Slauson had accepted a position with Texas Instruments com- mencing December 29. 6t See discussion D, 4.

62 See also G.C. Exh. 5(b).

63 The General Counsel appears to contend, on the basis of a December 19 letter from the contracting officer (Resp. Exh. 28), that Respondents should have employed eight long-range planners. As noted herein, the Respondents' technical proposal included employing four in that position, and it did so at all times after Licata was hired. In the absence of some showing in the record that the Respondents were obligated to employ four charts (G.C. Exh. 5(g)) that L. C. Keene was transferred from the leadman position in the systems engineering branch to the leadman position in the long-range plans branch.6 4 The date of his transfer from the systems engineering branch to the long-range planning branch is not disclosed; however, the organization chart for the engineering division for November (G.C. Exh. 5(f)), which was submitted to the Army on December 15, bears the date of December 8, and Respondents' Exhibit 54(h), bearing the date of December 11, show Keene still the leadman in the systems engineering branch, indicating to me that Keene was not transferred to long-range planning until the latter part of December. In the meantime, on December I 1, Dr. Slauson submitted his resignation. In sum, I find that Dr. Slauson was replaced by Licata on July 21, and had resigned his employment by the time an addition was made to long-range planning. As noted earlier under the discussion on Luther Briggs, at the hearing the General Counsel did not contend that any of the alleged discriminatees should have been hired to replace physical scientists Ruth Parry or Bernard Pardo, research analysts Mary L. Woodyard and John H. Rader, and mathematician Donald Criley, and no testimony was proffered by either the General Counsel or Respondents regarding their qualification, duties, pay categories, etc., from which it is possible to make a finding as to whether any of the alleged discriminatees should have been offered jobs in their places. Accordingly, I again find no merit in the General Counsel's contention. I find further, for reasons stated earlier, that the positions of expediter, property control clerk, tape certifier technician, and elec- tronic technicians 1, II, and III are not substantially equivalent to Dr. Slauson's job as senior engineer in long- range planning. Regarding the General Counsel's position that Dr. Slauson should have been hired as a systems engineer or a project engineer, it has been established that the only systems engineers hired between the end of the strike and his resignation in December were strikers, Lunsman on November 12 and Rudd and Lester on November 28. Further, Anello testified without contradiction that Dr. Slauson had never worked as either a systems or project engineer. In these circumstances, I find no merit in the General Counsel's contention.as 10. Gan Y. Mak Mak was hired in 1971, is classified as a senior scientific programmer, and became a striker on July 7 prior to his scheduled transfer from BDM Services Company to Zapex on July 21. On Tuesday morning, September 2, Mak called Littou and offered to return to work the following day. The offer was reconfirmed by mailgram the same day, and on additional long-range planners, I conclude that the contracting officer was mi error.

84 G.C. Exh. 53 shows Keene was hired initially in February 1974 as a senior engineer and was transferred to Zapex on July 1. a Had Rudd been reinstated as a project engineer immediately following his unconditional offer to return, as I have found he should have been, my conclusions regarding Dr. Slauson's right to recall would not be different in light of the uncontradicted testimony that he had never worked as a project engineer, and for the further reason his offer to return to work was limited to his former job as a senior engineer in the long-range planning branch. 1257

DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 9 he was informed by mailgram that he had been replaced. On October 28, Cline wrote a letter offering Mak a position as senior scientific programmer at a salary of $1,100 per month, but sent the letter to an old address. Mak never received the letter and, on November 7, Cline wrote again withdrawing the offer since Mak failed to respond. However, on November 10, another offer letter was sent to Mak at the correct address, and on November 12 he accepted the offer. In early 1976 he received a salary increase. The General Counsel contends that Mak should have been reinstated immediately on his September 2 offer to return to fill the vacancy created when mathematician Daniel L. Brown left on August 22. He contends further that Mak should have been reinstated immediately to replace Daniel C. Plunkett and Alberta Frees, program- mers who left Respondents' employ on August 8 and 10, respectively, and to replace scientific programmers Garry Day and Daniel M. Milani who left on October 10 and 29, respectively. He also contends that Day should have been called to replace P. G. Slater who left on October 24. While the General Counsel asserts that Mak should have replaced mathematician Daniel L. Brown immediately on his application to return on September 2, no evidence was proffered regarding the duties, pay categories, etc., of the mathematician from which it is possible to make a finding Systems Experinentation Analysis Prograning Progra-ming Support Aug. 6 7 Sept. 6 6 (Day Oct. 7 6/ 6 Nov. 7 7 (alk Dec. 7 7 While Day is shown in Respondents' records as a senior scientrfic programmer, Anello testified Day had prior systems programming experience, that at the time of his resignation he was working as a systems programmer, and that, after his resignation, a portion of that work was picked up by newly hired senior systems programmer Crockett. Although I am unable to determine from the organization and matrix charts the exact nature of the work Day was performing at the last, systems or scientific programming, the matrix chart for August (G.C. Exh. 5(c)) shows him devoting all of his time to two projects for which senior systems programmer Slater was responsible. Further, it is noted that the individual hired after Day's departure was senior systems programmer Crockett, which brought the systems program branch up to its authorized strength of seven. Moreover, the Respondents' initial attempt to se The General Counsel mistakenly states in his brief that the Respon- dents employed no mathematicians after Brown left on August 22. G.C. Exh. 3 lists D. R. Mar, whose title in G.C. Exh. 52 is statistician, as a mathematician assigned as group leader, mathematics and statistics group. G.C. Exh. 52 lists at least five other statisticians. See also G.C. Exh. 53 listing D. F. Criley as a mathematician, methodology group. e7 The Respondents employed four levels of programmers: senior systems programmers, senior scientific programmers, scientific program- mers, and programmers. ss Personnel organizational charts were prepared sometime after the first part of the succeeding month. as to whether or not the job of mathematician is substan- tially equivalent to that of a senior scientific programmer.86 There was no testimony regarding Plunkett. Testimony regarding Frees was to the effect that she had resigned around August 10, that she was a programmer which is the lowest level of skill among the several kinds of program- mers, and that Mak "probably could" have been trained to do the job she had done.6 7 No additional evidence was offered from which a determination can be made as to whether the job of programmer is substantially equivalent to that of senior scientific programmer. Day was listed in the technical proposal as one of five senior scientific programmers along with Mak, Sparkman, Atkinson, and Mann. Bradford, Plunkett, Milani, and LeVan were listed as scientific programmers, and Frees and Alvan as programmers. There were seven senior systemn programmers listed; those scheduled to be on board as of July 31 were Antonucci, Beadell, Gant, Hays, Slater, McCarten, and Niemoller. The personnel organiza- tion charts (G.C. Exhs. 5(d) - (g)) show that the ADP software division, headed by H. L. Johnson, was divided into three branches, systems programming, experimenta- tion programming, and analysis support. The numbers of employees in each branch for the months of August through December were as follows: 68 Mgr. Total 19 18 18 19 19 5 1 ! gone) 5 1 4 (MUlani left 1 Oct. 29) k back) 4 70/ 1 4 (Weaver gone) 1 recall Mak by letter dated October 28, albeit sent to the wrong address, coincides with the departure of Milani and convinces me that Mak was hired to fill the vacancy created by Milani's departure which brought the strength of the division back to its authorized strength of 19. Accordingly, I find no merit in the General Counsel's contention that Mak should have been recalled upon Day's departure. The General Counsel also contends that Mak should have been recalled to fill the vacancy created by Slater's departure on October 24. While Slater is listed in General Counsel's Exhibit 53 as a senior scientific programmer, the Respondents' proposal in response to the Army RFP lists him as a senior systems programmer, and he was assigned to the systems program branch of ADP software division. Accordingly, it is found that he was a senior systems Us Senior systems programmer Crockett, who commenced working November 3, is listed in the October report. The ADP software division October report shows a date stamp of November 7. The report also shows Milani gone (as of October 29) and Antonucci, the supervisor in systems program branch, as acting supervisor in analysis support branch. The General Counsel does not contend, nor does the evidence show, that Mak was qualified as a senior systems programmer.

70 An asterik alongside his name undoubtedly indicates Dr. Weaver was scheduled to transfer out of Analysis Support soon; thus, his name is missing from the December report, which brings the department hack to its authorized strength of 19. 1258

ZAPEX CORPORATION programmer and that it was not shown that Mak had the qualifications to replace him as a senior systems program- mer. 11. Clyde Varney Varney was hired initially in 1972 and worked for BDM Services Company as an associate electronic engineer in the ED lab. He was scheduled to transfer to Zapex on July 21; however, he became a striker on July 7. On August 29, he called Littou and stated he was ready to return to work and was told his name would be placed on a list and he would be contacted. On September 3, he sent Respondents a mailgram making an unconditional offer to return, and on September 6 received a mailgram that he had been replaced. By letter dated October 9, Varney was offered and accepted a position as a radar technician at the electronic technician II rate of pay of $4.94 per hour, 6 cents less than he had earned as an associate engineer with

BDM Services Company prior to the strike. In March 1976, he was promoted to electronic technician I and received a raise in pay to $5.67 per hour, 67 cents more than he had made as an associate engineer prior to the strike. The General Counsel contends that Varney should have been reinstated into at least nine openings in four classifi- cations prior to his reinstatement, including four radar technician vacancies as of September 3 in the ra- dar/DARS/CDL section of IMO. He also contends that Varney should have been hired as an associate engineer in the prototype development and fabrication support branch of the engineering department in place of new hires Timothy C. Cook and Milton Brown and to replace A. Nichta who failed to show up. He contends further that Varney could have been reinstated immediately to two positions in the RMS/DFS section of IMO, one in place of Jeffrey V. Johnson who was hired September I. In addition, he contends that Varney should have been hired to fill the two communications technician positions for which Soares and Kim were hired in early October; as an electronic technician in the instrumentation support sec- tion of IMO in place of Dennis Wilson, in place of Larry Motherwell, 7' and to replace Thomas and Haney 7 2 on September 15 and Charles Harris as property control clerk on September 26. Regarding the General Counsel's contention that Varney should have been hired immediately to fill a vacancy in radar/DARS/CDL section of IMO, Respondents' Exhibit 53(a) shows that as of September 3 this section had an authorized complement of nine and an actual complement of six, with W. H. Roberts, an electronic technician 111, scheduled to terminate on September 5. On September 5, striker Arthur C. Hull was offered reemployment as an electronic technician II, the only employee hired into this section prior to the recall of strikers Varney as an electronic technician II and Hadveck as an electronic technician I on October 9. Moreover, those three strikers were the only additions to the section until February 1976. While the authorized strength in the section was nine, Anello testified without contradiction that Varney and

71 Motherwell was hired specifically because of his expenence with the

GE 605 computer while employed by Bell. Varney had no experience on the

GE 605. Hadveck were recalled as soon as there was a need for radar technicians. The technical proposal to the RFP (G.C. Exh. 3) lists both Varney and Hadveck as radar technicians in the radar/DARS/CDL section. In a supplement to the propos- al (G.C. Exh. 53), Varney is listed as a laser technology technician in RMS/DFS section, while Hadveck is again shown as a radar technician in radar/DARS/CDL. In the June 26 personnel assignments list showing proposed staff assignments for July 15 (G.C. Exh. 5(a)) Varney is again listed as a laser technology technician and Hadveck as a radar technician. In the July 9 personnel assignments lists showing proposed staff assignments for July 31 (G.C. Exh. 5(b)), Varney is listed as one of six associate engineers who are listed in the technical proposal as being assigned to the

PDFS branch of instrumentation. Hence, I conclude that the Respondents considered Varney qualified as a radar technician, a laser technology technician, and as an associate engineer in PDFS. For reasons set forth in my analysis in section D, 3, I1 have found that both Cook and Brown had accepted permanent employment prior to the striker's offers to return to work; that Nichta had orally accepted a position as associate engineer by September 2, but failed to report on that date; that on September 2 the Respondents employed and had on board eight associate engineers in PDFS, which was the authorized number; that, with the addition of Cook and Brown, the section was overstaffed, and that the only additional person added to the section was striker Barela in early October. (See and compare Resp. Exh. 54 and G.C. Exhs. 5(c) - (f).) Therefore, no merit is found in the General Counsel's contention regarding the Respondents' failure to reinstate Varney to the PDFS section. The General Counsel contends that two openings were available in the RMS/DFS section of IMO to which Varney should have been reinstated, one filled by Jeffrey V. Johnson on September 1. The evidence shows that an offer letter was sent Johnson on or about August 15 and that he commenced working on September 1. As oral acceptances were customarily obtained before mailing an offer letter, I conclude Johnson had accepted employment prior to the strike end. Thus, one opening remained in RMS/DFS which was filled by striker Eugene T. Wiggins who was recalled on September 5 and reported for work on September 8. As Wiggins and Varney enjoyed equal status of strikers, Respondents would derive no advantage in selecting one over the other on the basis of their past activities. Accordingly, I find no merit in the General Counsel's contention Varney should have been reinstated in the RMS/DFS section. Robert Kim retired from the Air Force on August 31, having had extensive communications experience in the armed service. J. E. Soares retired from the Army on September 30, having been a master sergeant in DCSI at Fort Hunger Liggett, also having had extensive communi- cations experience in the armed service. Anello testified that in the fall of 1975 an outside contractor was to install a new range communication system at Fort Hunter Liggett,

72 See discussion of Haney in sec. D, 3, wherein I found that Haney's job no longer exists. 1259

DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Company was in need of competent communica- tions technicians to operate the new system upon its delivery. He testified that three strikers were competent to perform that work: Rudd, Gibb, and Varney. As Rudd and Gibb commanded substantially higher pay than the Re- spondents were willing to pay for that type work, neither was recalled. Anello testified that Varney had already been recalled; however, the evidence convinces me that about this time the Respondents were in the process of recalling Varney to a radar technician job for which he was better qualified. Therefore, the Respondents hired Soares and Kim who commenced work on October 6, and on October 9 recalled Varney to a job for which he was better qualified. In these circumstances, I find no merit to the General Counsel's contention that Varney should have been hired in the place of Soares and Kim. As explicated in section D, 3, Dennis Wilson was hired while he lived in Alhambra, California, and received relocation funds pursuant to the Respondents' "new employee relocation" policy commencing on August 29, and thereafter received additional funds pursuant to that policy while securing a permanent residence. Had Wilson not been hired prior to August 29, he would not have been entitled to receive relocation expenses for that date. As more fully set forth in section D, 3, I am convinced and find that Wilson was hired prior to the end of the strike and offers to return. It was not shown that Varney possessed the requisite experience necessary to perform the job of expediter filled by Gowin on October 1. For that reason, and as the expediter is not within the unit sought to be represented by the Union, the General Counsel's contention that Varney should have been hired in Gowin's place on October I is without merit. As the position of property control clerk is not substantially equivalent to that of an electronic technician II, the position to which Varney was recalled - a differential of 29 percent in pay - the Respondents were under no obligation to offer Varney the job of property control clerk in place of Harris or Roof. No evidence was offered regarding Kershner who had been employed as a digital electronic technician in RMS/DFS and who left Respondents' employ on August 29. It appears, however, that striker E. T. Wiggins was recalled on September 5 and reported on September 8 as a digital electronic technician in that section. As between strikers, the Respondents would derive no advantage in selecting one over the other, unless the advantage rested on qualifications. I therefore find no merit in this contention of the General Counsel. 12. C. W. Hadveck 73 Hadveck is a radar technician who started his employ- ment with a BDM affiliate in October 1971, was scheduled to transfer to Zapex on July 14, but joined the strike at its inception. His offer to return following the strike was through the Union's letter of September 3. Anello testified that in early October the Respondents had a need for radar technicians, and by letters dated October 9 recalled both Varney and Hadveck, the latter as

73 Hadveck was not called to testify. "4 He resigned on December 2. an electronic technician I at $5.67 per hour, and assigned both to radar/DARS/CDL.74 He commenced working on October 15. The General Counsel contends that Hadveck was quali- fied as a radar technician, an installation technician, and as an associate engineer in the PDFS, and that he should have been reinstated immediately to four openings in ra- dar/DARS/CDL; that he should have been hired as an associate engineer in the PDFS branch in place of Milton Brown and to replace Nichta who failed to report on September 9; to replace William P. Kershner who left on August 29, W. H. Roberts who terminated September 5; in place of Dennis Wilson, Lawrence Gowin, and Larry Motherwell; and to replace Thomas N. Haney and Gerald W. Roof. The status of each of these individuals has been considered in relation to Varney's recall rights, and my conclusions in Varney's case are equally applicable to Hadveck. Accordingly, I find no merit in the General Counsel's contentions regarding the failure of Respondents to recall Hadveck prior to October 9. 13. Robert Salczynski Salczynski was first employed by a BDM affiliate in 1971, was scheduled to transfer to Zapex on July 14, but instead joined the strike on July 9. He was slated to be the lead technician in the field support section of IMO. On July 14, Salczynski and fellow striker L. G. Lambert talked to Dupere in his office at Fort Hunter Liggett and stated they were ready to go back to work; however, they changed their minds and rejoined the strike because they felt they were "being treated like a second class citizen" because Littou had asked them to stay in the deputy field offices (Army) area and "not move around the premises." On or about August 29, Salczynski went to Fort Ord and advised Phillips he was ready to return. The offer was confirmed by mailgram dated September 2. On September 6 he received a mailgram to the effect that he had been replaced. On February 17, 1976, he received a telegram offering him a job as an electronic technician I at $5.67 per hour. By telegram dated February 23 he informed the Respondents that he "cannot accept offer... NLRB calls for reinstate- ment not less benefits or pay." 75 Apparently conceding Salczynski was replaced by asso- ciate engineer J. F. McComas as the leadman in the field support section of IMO, the General Counsel contends that Salczynski should nevertheless have been recalled to replace McComas who received a job-related back injury in September, was on sick leave and operated on in October, returned to work on an undisclosed date, was operated on a second time in January 1976, and had again returned to work on an unspecified date which was prior to the hearing in this matter. No new employee was hired to replace McComas during either of his absences because of surgery. Instead, he was temporarily replaced by Feliciano during his first absence, then by J. H. Reno, an electronic technician I in the same section, and later by Donovan Palmer, the lead technician in the RMS/DFS section. At no time was there any doubt regarding the fact that he

75 Prior to his scheduled transfer to Zapex, Salczynski had received $6.89 per hour as an associate engineer. 1260

ZAPEX CORPORATION would return. Citing Ace Drop Cloth Co., Inc., 178 NLRB 664, 669 (1969), the General Counsel contends, apparently, that upon receipt of a letter dated January 7, 1976, from a doctor to the effect that McComas was scheduled for his second surgery on January 8, 1976, and would be totally disabled from working until about July 1, 1976, that Salczynski should have been reinstated immediately to replace McComas as acting leadman in the field support section. While in retrospect the General Counsel's sugges- tion could have been followed, the issue is whether the Respondents were legally obligated under the circum- stances to have done so. In Ace Drop Cloth, an employee left work because of pregnancy with the understanding that she would be gone for about 9 months, but "could return to work thereafter" when she arranged for the care of her child. The Trial Examiner noted there was a "substantial possibility" that she would never return, which actually occurred. Instead of recalling a striker, the company hired a new and completely inexperienced employee as her replacement. It was in these circumstances that the Trial Examiner, affirmed by the Board, found that the company was obligated to offer the vacancy to the striker. The instant case, in my view, is clearly distinguishable in that no new employee was hired to replace McComas, he was replaced temporarily by experienced personnel, he was considered by the Respondents to be an employee at all times,7 6 and there was never any doubt about his returning to work. Moreover, he appears to have returned to his job far earlier than the doctor had predicted. In these circum- stances, I find the Respondents were not legally obligated to recall Salczynski as a replacement for McComas during his temporary absences for surgery. The General Counsel contends that Salczynski should have been reinstated immediately in PDFS in place of Timothy C. Cook and Milton Brown and to replace A. Nichta who failed to start work on September 9. He contends two openings were available in the RMS/DFS section of IMO, one filled by Jeffrey V. Johnson on September 1, and another vacancy in the instrumentation support section which was filled by Dennis Wilson. In addition, he argues that Salczynski could have been reinstated in place of hiring Larry Motherwell, 77 Lawrence Gowin, and Gerald Roof, and upon the departures of William R. Kershner, Thomas N. Haney, 78 Francis R. Hertz, Robert Runyon, and Charles Harris. See section D, 11, regarding reinstatement to: (1) PDFS (Cook, Brown, and Nichta); (2) RMS/DFS (Johnson); (3) instrumentation support section (Wilson); and (4) to replace Roberts, Kershner, and Gowin, all of which are equally applicable to Salczynski. As found in earlier sections, the job of property control clerk (Harris and Roof) paying $3.53 per hour is not substantially equivalent to the job of associate engineer formerly held by Salczyn- ski. Hertz, an electronic technician 11, worked as a laser technician in RMS/DFS.7 9 He resigned effective Novem-

76 See organization charts for months of January and February 1976, G.C. Exhs. 5(g) and (h) and Resp. Exh. 53. "7 As noted before, Motherwell was hired specifically because of his experience with the GE 605 computer while employed by Bell. Salczynski had no experience with the GE 605.

78 See discussion of Haney in sec. D, 3, wherein it was found that Haney's job no longer exists. ber 13. Salczynski was classified as an installation techni- cian, and the evidence fails to show he was qualified as a laser technician. Further, it does not appear from the record that Hertz was replaced. 8 0 For these reasons, and as electronic technician II is not substantially equivalent to associate engineer, no merit is found in the General Counsel's contention Salczynski should have been hired to replace Hertz. See the discussion in section D, 2, regarding Runyon, which is equally applicable to Salczynski. The record shows no new employees were hired in either ED or

PDFS following Runyon's departure until the reorganiza- tion in January 1976 and an increase in the staff size was authorized, at which time Horrell was reinstated. Accord- ingly, the General Counsel's contention regarding Salczyn- ski's right to recall to replace Runyon is rejected. 14. Craig Shields Shields was first employed by a BDM corporation in 1971 and was slated to transfer to Zapex on July 14; however, he joined the strike on July 7. Prior to the strike he was employed by BDM Services as an associate engineer in the ED lab at Fort Hunter Liggett, earning $6.40 per hour. His personnel category was installation technician. During the afternoon of August 29, Shields called Feliciano and stated he would like to return. He testified that Feliciano responded, "Boy, we need you." '8 He next called Littou who said his name would be put on a list and he would be contacted the following week. On September 2, Shields confirmed his offer to return by mailgram, and on September 6 received a mailgram advising him of his replacement. On February 23, 1976, Shields accepted a job with another employer, and on February 26 he refused the Respondents' February 19 offer of a job as an electronic technician I paying $5.67 per hour. As with Salczynski, the General Counsel contends Shields should have been reinstated immediately in PDFS in place of Cook and Brown and to replace Nichta who failed to report for work on September 9; that there were two openings available in RMS/DFS section of IMO, one filled by Johnson on September 1; that there was another vacancy in the instrumentation support section for which Wilson was hired; that he should have been reinstated in place of hiring Motherwell, Gowin, and Roof, and upon the departure of Kershner, Haney, Harris, Hertz, Runyon, and Roof. See section D, 11, regarding reinstatement to: (1) PDFS (Cook, Brown, and Nichta); (2) RMS/DFS (Johnson); (3) instrumentation support section (Wilson); and (4) replace Roberts, Kershner, and Gowin, all of which are equally applicable to Shields. As found in earlier sections, the job of property control clerk (Harris and Roof) pays $3.53 per hour and is not substantially equivalent to the job of associate engineer formerly held by Shields. Hertz, an electronic technician II, worked as a laser technician in RMS/DFS and resigned November 13.

79 G. C. Exh. 5(1).

80 See discussion of Hertz in sec. D, 3.

81 It was not contended that Feliciano exercised any personnel or hiring authority. 1261

DECISIONS OF NATIONAL LABOR RELATIONS BOARD While Shields was classified as an installation technician, his resume, General Counsel's Exhibit 4, discloses he had some experience with lasers. It does not appear from the record, however, that Hertz was replaced.82 Moreover, the job of electronic technician II, paying $4.94 per hour, is not substantially equivalent to the associate engineer job paying $6.40 per hour, a differential of 23 percent, which Shields had prior to the strike. I find, therefore, that the claim that Shields should have been recalled to replace Hertz is without merit. As the record establishes no new employees hired in either ED or PDFS following Runyon's departure until after the reorganization in January 1976 following authorization for an increase in staff size, at which time Horrell was reinstated, no merit is found in the General Counsel's contention that Shields should have been recalled to replace Runyon. 15. Gerald Schmidt Schmidt, who had worked for Bell, was interviewed on June 18 and hired by Respondents as a maintenance mechanic IV, refrigeration, at $5.04 per hour. He com- menced working for Zapex on July 2, worked 2 days, and then went on vacation until July 14 when he reported back to the jobsite but declined to work because of the strike. On August 28, he told Littou at Fort Hunter Liggett that he was ready to go back to work. Littou stated he would have to get in touch with Fort Ord and would contact him on August 29. Unable to talk to Littou on August 29, Schmidt contacted him personally on September 2 and was in- formed there were no openings then but, if one opened up, they would call him. On April 2, 1976, Gary Patchett, a maintenance mechanic II, refrigeration, departed from the Respondents' employ, and on April 5, 1976, Zapex sent Schmidt both a letter and mailgram offering him immedi- ate employment as a maintenance mechanic IV, refrigera- tion, paying $5.04 per hour.8 3 Accordingly, he commenced working in that capacity on April 8, 1976. The General Counsel contends that there were several job openings for which Schmidt was qualified, "The most obvious opening is evidenced by the fact that Respondents offered a person by the name of W. Sichert a position as an electrician on or about September 15 . . ." making refer- ence to Respondents' Exhibits 53(c) and (d), the organiza- tion charts prepared by Phillips. Respondents' Exhibit 53(d), prepared on September 15, lists "W. Sichert G. M. Mech. IIl, Electr" as the 12th name under the mechani- cal/electrical section, which indicates both an authorized and actual complement of 11 employees. On the next exhibit, Respondents' Exhibit 53(e), Sichert's name is deleted and the section continues to list II employees as the actual and authorized complement. I have carefully searched the transcript and can find but one reference to Sichert. At page 1690, Respondents' attorney asked Phil- lips, who prepared the chart: "Do you know whether Sichert ever showed up for work?" The response: "I think he did not." With respect to the preparation of the charts, Phillips testified he listed names in the areas he thought individuals would work, but that he was not necessarily e2 See discussion of Hertz in sec. D, 3.

83 Maintenance mechanic IV is a higher classification than maintenance mechanic II. correct, and that he sent the charts to the department chiefs for, hopefully, correction. The fact that Sichert's name is deleted from the chart indicates the obvious, that Phillips had been in error with respect to Sichert. In fact, General Counsel's Exhibits 53(a) - (y) show that no general maintenance mechanics, either electrical or refrigeration, were hired during September, October, November, or December. In these circumstances I find the General Counsel's contention without merit. The General Counsel contends that an opening is reflected by the fact that Jerry C. Parks, an electrician III, quit or was fired on August 14 and was not replaced prior to Schmidt's offer to return on August 28. I have been unable to find any reference to Parks in the testimony, nor to the fact he either was or was not replaced. However, General Counsel's Exhibits 5(a) and (b), the personnel assignments for July 15 and 31, respectively, list two slots for electrician and two for refrigeration technician. The personnel and assignment rosters for the months of August and September, General Counsel's Exhibits 5(c) and (d), respectively, both list 11 in the mechanical/electrical shop, (the authorized strength) among whom are electricians J. H. LaRiviere (hired July 23), G. F. Ferris (hired July 2), and refrigeration technicians G. S. Patchett (hired August 1) and J. Tucker (hired August II). Therefore, I find no opening existed as alleged by the General Counsel. It was contended that Schmidt should have been hired as expediter on October I in place of Lawrence Gowin. As explained in section D, 1, the expediter is an administrative staff position. He is the chief buyer for the Respondents, the job requiring knowledge and experience in ordering and procurement which Schmidt lacked. While the expedit- er's rate of pay is not disclosed, from an organization standpoint the position is in administration and the nature of the duties convinces me that the position is not substantially equivalent to that of a maintenance mechanic IV. The General Counsel also contends that Schmidt should have been hired as property control clerk on October 15 in place of Gerald W. Roof. The rate of pay for property control clerk, $3.53 per hour, is 30 percent less than Schmidt's wage of $5.04 per hour as maintenance mechanic IV. Accordingly, I find the jobs are not substan- tially equivalent. The General Counsel contends that Schmidt should have been hired in November when the Army, on the basis of employee resumes, advised the Respondents that it consid- ered 19 employees, including Patchett, as not qualified for the positions they were filling. (G.C. Exh. 6.) The Respon- dents disagreed with the Army's evaluation and advised the contracting officer that "G. S. Patchett has been reevaluat- ed and is considered qualified for the Level II Journeyman position to which he is assigned." (G.C. Exh. 49.) Whether, as the General Counsel claims, Patchett should have been terminated by the Respondents on the basis of the Army's assessment of his qualifications is a contractual matter to be resolved between the Army and the Respondents, and not by me. The fact remains that the Respondents considered Patchett to be qualified and employed him until April 4, 1976, at which time he terminated and Schmidt 1262

ZAPEX CORPORATION was recalled as his replacement. Therefore, I find no merit to the contention Schmidt should have been recalled in November to replace Patchett. In sum, I have found that the Respondents failed to reinstate Spear on September 2 and Rudd on August 29, the dates they made personal appeals for reinstatement, to jobs for which they were qualified and entitled by reason of the fact there were jobs then filled by temporary employ- ees. I have further found the Respondents did not engage in unfair labor practices in any other respects. In arriving at my conclusions, I have noted the lack of probative evidence of union animus on the part of the Respondents. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES

UPON COMMERCE The activities of the Respondents set forth in section IV, above, occurring in connection with the operations of Respondents as described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that the Respondents have engaged in unfair labor practices violative of Section 8(a)(3) and (1) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. I shall recommend that the Respondents be required to make David Spear and William Rudd, Jr., whole for any loss of earnings they suffered by reason of Respondents' failure to reinstate them on September 2 and August 29, respectively, by payment to each of them of a sum of money equal to that which he normally would have earned until the date on which valid offers of reinstatement were made by the Respondents. Loss of earnings, as referred to above, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co.,

138 NLRB 167 (1962). Upon the basis of the foregoing findings of fact, and the entire record in this proceeding, I make the following:

CONCLUSIONS OF LAW

1. Respondents are each employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act.

3. By failing and refusing to reinstate economic strikers David Spear and William Rudd, Jr., when work for which they were qualified became available, and after each had

84 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. unconditionally requested reinstatement, thereby discour- aging membership in the Union, the Respondents have violated Section 8(a)3) of the Act.

4. By the foregoing conduct the Respondents interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a) 1) of the Act.

5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER84 The Respondents, BDM Services Company and Zapex Corporation, Fort Ord and Fort Hunter Liggett, Califor- nia, their officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Failing and refusing to reinstate economic strikers who have unconditionally requested reinstatement when work for which they are qualified becomes available.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act.

2. Take the following affirmative action which shall effectuate the purposes of the Act:

(a) Make David Spear and William Rudd, Jr., whole for any loss of earnings they may have suffered by reason of the Respondents' failure to immediately reinstate them upon application, in the manner set forth in the section of this Decision entitled "Remedy."

(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order.

(c) Post at their places of business in Fort Ord, Califor- nia, and Fort Hunter Liggett, California, copies of the attached notice marked "Appendix." 85 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by the Respondents' respective representatives, shall be posted by them immedi- ately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material.

(d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith.

85 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1263